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R. v. Patrick Fox - Trial Transcripts

Highlighting Legend
Perjurious testimony which defense counsel (Tony Lagemaat) and Crown Counsel (Mark Myhre) knew of
Critical statements - e.g. inciminating admissions
Statements of interest - e.g. testimony which Lagemaat should have known to pursue further or cross examine on, but didn't
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27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 19, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
COPY
BAN ON PUBLICATION - INHERENT JURISDICTION
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550
27178
Vancouver Registry
In the Supreme Court of British Columbia
(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)
Vancouver, B.C.
June 19, 2017
REGINA

v.

PATRICK HENRY FOX
PROCEEDINGS AT TRIAL
COPY
BAN ON PUBLICATION - INHERENT JURISDICTION
  • Crown Counsel:M. Myhre
  • Appearing on his own behalf:P. Fox
J.C. WordAssist Ltd. (Vancouver)
Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2
Phone 604-669-6550

INDEX

WITNESSES FOR THE CROWN:

  • MANVIR MANGAT3
    • EXAMINATION IN CHIEF BY MR. MYHRE:3
    • CROSS-EXAMINATION BY THE ACCUSED:9
    • CROSS-EXAMINATION BY THE ACCUSED, Continuing:14
  • FRANK SPIZUOCO18
    • EXAMINATION IN CHIEF BY MR. MYHRE:18
    • CROSS-EXAMINATION BY THE ACCUSED:21
    • CROSS-EXAMINATION BY THE ACCUSED, Continuing:25
  • JEAN-PHILIPPE DUPONT30
    • EXAMINATION IN CHIEF BY MR. MYHRE:31
    • CROSS-EXAMINATION BY THE ACCUSED:41

EXHIBITS

  • EXHIBIT 10: Affidavit of Allen Leung, Firearms Officer, sworn June 20, 201616
  • EXHIBIT 11: Affidavit of Neena Sharan sworn June 20, 201617
  • EXHIBIT 12: Admissions of Fact re Restricted Firearms dated May 29, 201717
  • EXHIBIT 13: Binder titled "Photos - ATF Seizure" (formerly E for Identification)21
  • MARKED E FOR IDENTIFICATION: Binder titled "Photos - ATF Seizure"8
  • MARKED F FOR IDENTIFICATION: Document titled "UPS Tracking Information"16

RULINGS

  • Ruling re Amendment to Count 228
  • Ruling re Amendment to Count 157
(Jury Out)
Proceedings

BAN ON PUBLICATION - INHERENT JURISDICTION


Vancouver, B.C.
June 19, 2017
(JURY OUT)

THE CLERK: In the Supreme Court of British Columbia, at Vancouver, this 19th day of June, 2017. Recalling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.
MR. MYHRE: Good morning, My Lady. I apologize for the delay this morning. I think you heard that was my fault.
THE COURT: All right. Are we all set now?
MR. MYHRE: I believe so, My Lady. I just wanted to alert the court to a couple of things. I've just let Mr. Fox know that it appears to me there's a variance between the expected evidence and indictment; namely, the dates on s. 93 count, and the Crown will be applying after we hear the evidence on that point to amend the dates.
THE COURT: All right.
MR. MYHRE: After the first witness, Manvir Mangat, testifies, the Crown's intention is to then ask that the affidavits marked at the preliminary inquiry become exhibits on the trial. Those are the firearm -- the affidavits relating to Mr. Fox's firearms licence and his firearm's registration. And then we'll hear from two more witnesses. I do expect we'll comfortably finish the Crown case this morning.
THE COURT: Back to the first issue of the amendment of the indictment, is that something that should be done -- your application, should that be heard in the presence of the jury or the absence of the jury? I was -- I would think the absence.
MR. MYHRE: I don't see why it would need to be in front of the jury, My Lady.
THE COURT: All right.
THE ACCUSED: I have no opinion on that either way.
THE COURT: All right. And you understand what Mr. Myhre means by a variation between --
THE ACCUSED: Yes.
THE COURT: -- what he expects the evidence to be and what the dates are that are set out in the indictment?
THE ACCUSED: Yes.
THE COURT: I can tell you, Mr. Fox, that it's not unusual that this happens and the Crown applies to have the indictment revised, the dates to conform to the evidence. There are situations where objection may be taken and may even prevail if the variation has caused some prejudice to the defence. Those situations are not very usual, but they do happen, and if that's the situation for you, then I'll certainly hear for it -- from -- from you about it if you're taken by surprise, for instance, or it affects the way you would have conducted the case up to this point.
THE ACCUSED: Right. Thank you.
THE COURT: All right. The jury has selected a foreperson, I understand, so the first thing we'll do when the jury comes in is have the foreperson identified and there's a formal procedure that is gone through and the jury members will change seats so that the foreperson is sitting in that front seat.
All right, are we ready?
THE ACCUSED: There is --
THE COURT: Mr. Fox?
THE ACCUSED: There is one issue that I want to make sure that the court is aware of. Last week, while Mr. Lagemaat was conducting the cross-examination, I had been providing you my notes that we're -- I was making along the way. He had said that he would get those and his own notes back to me before I begin preparing the closing argument. I have not heard from him since, though. So I'm not sure if he's intending to provide me those today or tomorrow, but I would hope to get those before I could prepare my closing. I only have his office number, and so by the time I get back to the jail from -- from court, obviously he's no longer at the office or the office is closed, so I haven't been able to reach him.
THE COURT: That's something that needs to be looked into quickly, I would think.
THE ACCUSED: I would think.
MR. MYHRE: My Lady, I can try to contact Mr. Lagemaat at the break and ask him to make his way here to hand those materials to Mr. Fox.
THE COURT: All right. Thank you.
THE ACCUSED: Thank you. That was all.
MR. MYHRE: Mr. Fox, will you remind me of that at the break?
THE ACCUSED: Hopefully I'll remember.
MR. MYHRE: Okay. Hopefully one of us will remember.
THE COURT: Well, I'll try and remember. Between us we'll manage. All right.
THE SHERIFF: The jury, My Lady?
THE COURT: Yes, please.
THE SHERIFF: The jury, My Lady.
(JURY IN)
THE COURT: Members of the jury, please have a seat.
Members of the jury, I understand you have a foreperson now? All right. Madam Registrar?
THE CLERK: Members of the jury, have you selected a foreperson? THE JURY FOREPERSON: Yes.
THE CLERK: Mr. Foreperson, please state your number for the record. THE JURY FOREPERSON: 236.
THE CLERK: Thank you.
THE COURT: Thank you. Thank you for agreeing to serve in that capacity.
Mr. Myhre?
MR. MYHRE: My Lady, the Crown's first witness this morning is Manvir Mangat. If he could be paged into the courtroom, please.
My Lady, perhaps I could poke my head out the door.
THE COURT: Please.
THE CLERK: Please step inside the witness box or remain standing.
MANVIR MANGAT
a witness called for the
Crown, affirmed.
THE CLERK: Please state your full name and spell it for the record.
AManvir Mangat.
THE CLERK: Spell it for the record.
AM-a-n-v-i-r M-a-n-g-a-t.
THE CLERK: Thank you. You may be seated.
AThank you.
EXAMINATION IN CHIEF BY MR. MYHRE:
QMr. Mangat, how old are you, sir?
A45.
QAnd how long have you lived in the Lower Mainland?
A21 years.
QYou own a business called the Packaging Depot?
ACorrect.
QHow long have you owned that business?
ATen years.
QThat business is located at 3630 Kingsway --
ACorrect.
Q-- in Burnaby, British Columbia?
ACorrect.
QYou're familiar with Patrick Fox?
ACorrect.
QDo you see him here in the courtroom?
ACorrect.
QWhat is he wearing, sir?
ARed suit.
QAnd when did you first meet Mr. Fox?
AEven like he shipped some box in March 2016.
QHe shipped some boxes in March 2016?
ACorrect.
QAnd did he also do a little bit of work for you?
AYeah, he fixed like in the last shipment, he fixed some my computer stuff at my store.
QAnd how many -- on how many different occasions did Mr. Fox ship boxes through your business?
AThree time.
QDo you know roughly the dates that he shipped boxes?
AFirst one in March, two time in May.
QAnd when you shipped boxes for Mr. Fox, how did you come into possession of them, did Mr. Fox bring them to your business or did you pick them up?
AHe brought two time, last time I picked from his apartment.
QSo the first two times he brought them to the Packaging Depot?
ACorrect.
QAnd the last time --
AYes --
Q-- was it you yourself that picked them up?
AYes.
QAnd could you just describe exactly how that worked?
ASorry?
QExactly how did that work with you picking up the boxes at the apartment?
AHe called me up, so I went to his place, then pick -- picked up all the boxes. So he came to my store and then I shipped.
QAnd when you picked them up at his place, did you go up to his apartment or did --
ANo, no --
Q-- he bring the boxes down?
A-- just outside. Outside.
QYou were outside?
AYeah.
QAnd how did you come into possession of the boxes?
ASo he brought them in.
QHe brought them to you on the street?
AYeah, in my truck, and then we brought it to my store.
QMr. Mangat, there's a -- a book in front of you, and I have copies for the jury if they could be distributed, and I have a copy for Your Ladyship?
THE COURT: Madam Registrar, please.
MR. MYHRE:
QMr. Mangat, I'd ask you to open that up and go to page 3.
AYes.
QDo you recognize this document that's shown at page 3?
AYes, sir.
QAnd do you recognize the sender's signature on that document?
AYes, sir.
QIs that you?
AYeah, that's my signature.
QAnd what's the date you --
AI believe --
QDid you write the date in there?
AYeah.
QWhat is it?
AJune the 16th. 17, sorry.
QJune the 17th?
ANo, sorry, May -- May. Sorry, May the 17th.
QMay the 17th. Of what year?
A2016.
QOkay. And do you recognize this as one of -- as a document you filled in relation to --
AYeah, because I print it online, right?
QOkay. So --
AIt's a tracking number.
QDoes this document relate to any of the boxes Mr. Fox shipped through your business?
AOh, yes, yes. These are the boxes -- these are our labels. We put it on the boxes.
QOkay. Now, looking at that date, are you able to say what date you came into possession of the box that relates to this consignment note?
A17th of May.
QSo was it the --
A16th?
QDid you fill this out the same day you received the boxes from Mr. Fox?
AOh, yes, yes, same day.
QOkay. And I see under "From" it lists the name is the Packaging Depot and then "To" says {Liz M*****} --
AYeah, yeah, yeah.
Q-- in Carson, California?
AYeah. That would be the consignee he shipped.
QThat is what?
AThat is the ship -- like he send it to there, that address.
QSo, just to be clear, where did you get that address Liz, Carson, California from?
AHe -- he gave me the address.
QOkay. And there's a -- under "Goods," it says, "General Description: Computer and monitor"?
AThat's -- he -- yeah, he mention.
QDid you ever look inside the boxes?
ANo.
QNow, if you could flip to page 2, please. I'm going to suggest to you that's just a close-up of the same document on -- that was on page 3, is that --
AYes, yes. Yes.
Q-- is that right?
AYeah, yeah.
QAnd then flip to page 1, please. Do you recognize this -- this, it looks like a label on a box?
ACorrect.
QAnd does it relate to the same box as the --
AOh, yeah, yeah. These are the UPS labels and TNT, they use the UPS to send those boxes to the U.S., so they printed this UPS label.
QCan you just explain, you receive a box from a customer?
ACorrect.
QAnd then you fill out the label that we saw, it's called a consignment note?
ARight, right, right.
QAnd then what happens to the box?
AThen we stickered those box, send it to TNT and then they -- they -- they are using UPS, sending those boxes from Vancouver to where -- whatever, right?
QOkay.
ASo these are the UPS label. They generate it, TNT people.
QSo do I have this correct that a company called TNT will then come and get the boxes from your business --
ACorrect.
Q-- and then they will use UPS to ship things?
ACorrect.
QNow, why is it that you believe that this UPS label relates to the same consignment note that we were looking at?
ABecause he send it to there, you know? It's the same address, Liz.
QRoughly how long -- when you received the boxes from Mr. Fox on May the 17th --
ARight.
Q-- how long were they in your possession --
AOh --
Q-- before TNT came and got them?
AMaybe four hour, five hours.
QIf Mr. Fox had called you anytime in those four to five hours, could you have stopped the shipment?
ACorrect.
QWhat about once TNT had the boxes, could you have stopped the shipment?
ATNT, yeah. Yeah, like maybe -- maybe evening till like four o'clock. After that, they hand it over to UPS.
QAnd then what about once UPS had the box, could you have then stopped --
AThen --
Q-- the shipment?
AThen it's hard to stop.
QNow, do you know, Mr. Mangat, you said that the first two times Mr. Fox shipped boxes, he brought the boxes to your business, and the last time you picked them up?
ACorrect.
QDo you know which of those times this -- the consignment note relates to, was it the time you picked them up or -- or an earlier time?
ANo, at that time I picked them up.
QOkay. You said something earlier about Mr. Fox fixing your computers. Did he pay for this last shipment?
ANo, I didn't [sic].
QWhy not?
ABecause he'd done so much computer work at my place, right? So we exchange.
QAnd whose idea was that, yours or Mr. Fox's?
ANo, that was my idea because he's a computer engineer and I -- I just asked him if he can do that. He said it's okay. Then I -- we made a deal, right?
MR. MYHRE: My Lady, those are all my questions for Mr. Mangat.
THE COURT: Okay.
MR. MYHRE: My Lady, could this be marked as an exhibit for identification, please?
THE COURT: All right. The entire book?
MR. MYHRE: Yes.
THE COURT: What's the next exhibit for identification, Madam Registrar?
THE CLERK: It would be Exhibit E for identification, My Lady.
THE COURT: Did you say E?
THE CLERK: Yes.
MARKED E FOR IDENTIFICATION: Binder titled
"Photos - ATF Seizure"
THE COURT: Thank you. Members of the jury, what that means is it's not at this point going into evidence, but we give it a letter so that if it's referred to later, people know what is referred to, what document. It's the Crown's expectation that it will go into evidence later, but we'll have to wait and see if that's what ends up being the case, and I'll give you further instructions about it later if it does not go in.
All right. Mr. Fox, do you have some questions --
THE ACCUSED: Yes, I do. Thank you.
THE COURT: -- for Mr. Mangat?
CROSS-EXAMINATION BY THE ACCUSED:
QGood morning, Mr. Mangat.
AYeah, yeah.
QThank you for coming. The first question that I'd like to ask is of all the times that I've been at the Packaging Depot, did you ever see or do you ever have any firsthand knowledge of me possessing any handguns?
ANo, I didn't see anything.
QOkay. And I wonder if you might clarify for us. Now, I understand the dates on the consignment form that you had referred to was May 17th; is that correct?
AMm-hmm.
QBut then on the UPS label it says May 19th?
ABecause May -- it takes some times because that is a -- that is a -- you know, the TNT, they created this label, right?
QSure. Sure.
ASo sometime they taking longer to create it because they can't -- see, TNT --
QYeah.
A-- I created 17th, so some time, you know, TNT take little while to create UPS label, right?
QOkay. Sure. Sure. Now, you were speaking a little while ago about that I had done some work --
AYeah.
Q-- for the Packaging Depot to --
AYeah, yeah, yeah.
Q-- fix some computer issues that you had?
ARight, right, right.
QAnd then there was a shipment that I wasn't charged for --
AYeah.
Q-- in exchange perhaps --
AYeah, yeah, yeah, right.
Q-- informally for the work that was done on the computers.
ARight, right.
QDo you know was this box that we're discussing, was that part of that shipment, do you know, or --
AI think so because that is the last -- last one you shipped from my place.
QOkay. Do you remember when the work was done?
AI believe in May, the last -- May -- whenever the last shipment, right? Remember?
QCould it -- oh, I remember when it was.
AI don't know the exactly date, right? Because you brought it --
QYeah.
A-- two time you brought it, third time I picked up from your place, remember?
QOh, yeah. Yeah. Do you think perhaps it might have been -- well, okay, May 27th was when I had moved out of my apartment and was arrested. Could it have been May 25th?
ABecause -- see, because you -- this is the label we generated --
QRight.
A-- 17th, right?
QRight.
AI don't think so 25th.
QOkay. So do you know was there anything shipped, let's say, on my behalf or to this address in California on May 26th through May 31st?
ACan't remember now.
QNo problem. No problem.
ASo what date are you arrested?
QI was arrested on May 27.
ASo that means you shipped it before that, right?
QYes. Well --
THE ACCUSED: My Lady, I'm -- I'm not sure, given that I'm on cross-examination right now, if it's appropriate for me to make a statement regarding --
THE COURT: No.
THE ACCUSED: Right.
THE COURT: No, no statements, but if you want to ask me a further question, we can stand down, ask the jury to go to the jury room, ask the witness to step outside the courtroom, but you are confined in -- and we can certainly do that, Mr. Fox, but you are confined to questions.
THE ACCUSED: Right. Right.
THE COURT: You can ask if the -- you can make a suggestion and ask if the witness agrees with it, but if the answer is no, then the evidence -- then there's no evidence on that point.
THE ACCUSED:
QDo you -- Mr. Mangat, do you recall shipping a home theatre system? It was -- might have been in a large box, an LG home --
AYeah, yeah, yeah.
Q-- theatre system with speakers and --
AYes, I remember then.
Q-- a Blu-ray player?
AYou sent something, yeah.
QRight. Now, do you remember was that package, that box, was that shipped at the same time as this one or would that have been after?
AI think that was before. I can't remember months or last year, right?
QSure, sure.
AI have so many packages, right?
QThe -- okay, getting back to this box that was received by you on May 17th --
AYeah.
QHow certain are you that I personally brought that package in? I mean, is it possible that someone else may have brought that package on my behalf or are we absolutely certain at this point --
AWell --
Q-- given that there's some uncertainty as to whether I may have shipped other items before or after?
ANo, no, no, you --
THE COURT: Now, can you just -- that was a very long question.
THE ACCUSED: I'm sorry.
THE COURT: In fact, it was several. Can you put it again in a way so that it's just one question?
THE ACCUSED: My apologies.
QAre you certain beyond any doubt that when this particular box was brought into the Packaging Depot --
AMm-hmm.
Q-- that it was I that brought it in personally or --
ANo --
QWell, I guess that would be one question.
ANo, no, nobody else.
QOkay. So it was definitely me?
ANobody else.
QOkay.
ABecause it's all your boxes, remember?
QRight, right, but there may have been, I would suggest, somebody else that I might have hired or somebody that might have been helping me. For example, you had said that you yourself did come the my residence --
AYeah, yeah, yeah.
Q-- once or twice --
ACorrect.
Q-- and taken possession of some of the boxes --
AMm-hmm.
Q-- in that way, and would you say that this particular box may have been one of the boxes that you had picked up from my residence?
AI'm pretty sure.
QOkay.
ABecause this is a large shipment, remember? You sent like -- because you -- you arrested 27 --
QMay 27th.
AYeah. See, this is the 17th, you know?
QRight. This would have been 10 days, correct.
ABecause before -- before that you shipped in March, couple time March -- or beginning of May.
QDo you recall if there were any shipments in the month of April?
AYeah, there might be April, yes, might be April because --
QRight, right.
A-- you -- you shipped like three times, remember?
QWas it only three or --
AThree -- I guess three or -- I'm pretty sure like three times.
QOkay.
AWhy you are thinking more than that?
QOh, yes. Do you happen to remember roughly off the top of your head maybe how many boxes -- not individual -- or not complete shipments, but individually how many boxes may have been shipped?
AAltogether?
QYeah.
AMaybe 14, 15.
QOkay.
THE COURT: I didn't hear the answer and the jury may not --
AFifteen, Madam. Fourteen to 15.
THE COURT: Thank you.
ABut it's a long time, you know? It's one year back now.
THE ACCUSED:
QOkay. And -- and I apologize if it seems like I'm putting you on the spot, but getting back to the most crucial point, so there was no -- there's no recollection at all of any handguns?
AI didn't see anything.
QOkay.
AOf course, I didn't open any. It's none of my business.
QRight, right. Of course. And also maybe on my person or --
AOh, no, no, I didn't see --
QRight.
A-- anything, no.
THE ACCUSED: Okay. I have no further questions.
THE COURT: All right.
THE ACCUSED: Thank you.
THE COURT: Anything arising, Mr. Myhre?
MR. MYHRE: Yes, My Lady, and I wonder, it's something that would have to be addressed outside the presence of the jury, I'm afraid.
THE COURT: All right. Members of the jury, if you don't mind, please.
(JURY OUT)
THE COURT: And, Mr. Mangat, I'm going to ask you to step outside the courtroom briefly, please.
AOh, okay.
THE COURT: And we'll call you back in in a few minutes.
AOkay.
THE COURT: Thank you.
(WITNESS STOOD DOWN)
MR. MYHRE: My Lady, I was going to actually suggest to Mr. Fox that a lot of his line of questioning, there may be some documents that would assist him in establishing that maybe there was a later shipment in May, some of the documents that were tendered at the preliminary inquiry. So I don't know if Mr. Fox would like to do that, but I just wanted to raise that because I could see that he was struggling to try to establish that.
THE ACCUSED: Thank you. That's very considerate. Yep.
MR. MYHRE: So I would not be opposed to Mr. Fox asking more questions about one of the documents.
THE COURT: All right. That's very fair. Thank you, Mr. Myhre.
Now, Mr. Fox, you don't have to take up that offer, but if you think it would help you make the point that you wish to make, what you could do is re-open your cross-examination and show Mr. Mangat this document and ask him whether that refreshes his memory and helps him remember a shipment later than the one he's been talking about.
THE ACCUSED: Yes, I would like that. Thank you.
THE COURT: All right. Is there anything else that we should address?
MR. MYHRE: I don't have any re-exam, My Lady.
THE COURT: All right. Could we have Mr. Mangat back in the courtroom. Perhaps you could get him, Mr. Myhre, and at the same time we'll ask the jury to come back, please.
MANVIR MANGAT, recalled.
THE SHERIFF: The jury, My Lady.
(JURY IN)
THE COURT: Thank you, members of the jury.
Mr. Mangat --
AYes?
THE COURT: -- Mr. Fox is going to ask a few more questions in cross-examination.
Go ahead, Mr. Fox.
THE ACCUSED: May I provide this to Mr. Mangat?
THE COURT: Yes. Perhaps Mr. Myhre will --
THE ACCUSED: Thank you.
THE COURT: -- pass it to him. There's just the one copy, is there, Mr. Myhre?
CROSS-EXAMINATION BY THE ACCUSED, CONTINUING:
QNow, I understand that it was some time ago, it was over a year ago that -- and so maybe the details are not the clearest in our memories, but in that document there is a ship -- it says a shipped date on there? I believe it says, "Shipped/billed on"?
A27th?
QYes. Now, can you clarify what exactly that date refers to?
THE COURT: Mr. Fox, you might want to first ask if this is the kind of document --
THE ACCUSED: I'm sorry.
THE COURT: -- Mr. Mangat recognizes.
AYes, I recognize [indiscernible/voice low], yes, Madam.
THE COURT: Can you explain what that document is?
AIt's a UPS label that we put it on the box.
THE ACCUSED:
QOkay. Again, my --
ANot a label. I mean, this is a billing thing. Proof of, sorry, delivery. Delivered in the U.S. This is a delivery.
QRight. Okay. So the date that's printed on there for the "shipped/billed on"?
ANo, that is a billing date. Shipped might be before that. You see [indiscernible].
QOh, I see. I see.
ADelivered on. Yeah, that is a billing date on my account.
QOkay. So that's not necessarily the date that the package was shipped, then?
ANo, no, no, package supposed to be shipped before that.
THE ACCUSED: Okay. Well, that -- that clarifies that, then. I have no further questions. I'm sorry. Thank you, Mr. Mangat.
AOkay. Good luck, man.
THE COURT: Mr. Myhre, anything arising on that point or anything else?
MR. MYHRE: No, My Lady.
THE COURT: All right. Thank you very much --
AThank you.
THE COURT: -- Mr. Mangat.
AAll right. Thank you, sir.
THE COURT: Thank you, you're free --
AGood luck.
THE ACCUSED: Thank you.
THE COURT: -- to leave, Mr. Mangat.
(WITNESS EXCUSED)
THE COURT: Madam Registrar, the document should just be an exhibit for identification, please.
THE CLERK: That will be Exhibit F, My Lady.
THE COURT: Thank you.
THE CLERK: And who would be putting that in, then?
THE COURT: I'm sorry?
THE CLERK: Who would be tendered that, Mr. Fox?
THE COURT: It doesn't matter, just -- yes.
MARKED F FOR IDENTIFICATION: Document titled
"UPS Tracking Information"
MR. MYHRE: My Lady, at this juncture the Crown would like to tender two exhibits from the preliminary inquiry. They are affidavits related to Mr. Fox's firearms licence and firearms registration, and so I know Madam Clerk has those. There are two documents there stapled together. I would ask that they come apart and each be marked individually.
THE COURT: Do we have copies of these?
MR. MYHRE: I do have copies for exhibits and for the jury.
THE COURT: And, Mr. Fox, you have seen these?
THE ACCUSED: Oh, yes, yes, I have.
THE COURT: Any objection to them being admitted into evidence in this proceeding?
THE ACCUSED: No, My Lady.
THE COURT: All right. Then we'll follow that process and they should be taken apart and marked separately. Do we need the document notice?
MR. MYHRE: No.
THE COURT: So the first one will be the affidavit of a firearms officer. This one, Madam Registrar, that will be the next exhibit. And then this affidavit will be the one after.
MR. MYHRE: My Lady, I had made one copy for every two jurors --
THE COURT: All right.
MR. MYHRE: -- thinking we could share these.
THE CLERK: So that will be Exhibit G and H, My Lady?
THE COURT: No, numbered exhibits.
THE CLERK: That will be Exhibits 10 and 11.
THE COURT: All right. Could I have those copies, please? Thank you. So which one's 10?
THE CLERK: 10. I'll show you, My Lady. This will be 11 and 10.
THE COURT: Thank you.
So, members of the jury, the affidavit of a firearms officer is Exhibit 10, and the one simply called "Affidavit" on long paper is Exhibit 11.
EXHIBIT 10: Affidavit of Allen Leung,
Firearms Officer, sworn June 20, 2016
EXHIBIT 11: Affidavit of Neena Sharan sworn
June 20, 2016
MR. MYHRE: Now, My Lady, could I highlight a couple of things on here for the jury? Or I could simply invite them just to read the documents through.
THE COURT: You could highlight, but being very careful not to approach argument in any way.
MR. MYHRE: So, ladies and gentlemen of the jury, the affidavit, the eight and a half by 11 document, relates to Mr. Fox's firearms licence, and if you flip through, down to paragraph 6 on the second page, it talks about where Mr. Fox was allowed to have his firearms, and then paragraph 7 as well, which continues on to the next page, talks about what Mr. Fox was allowed to do as far as transporting his firearms.
Then if you flip to Exhibit A, which is the next page, and flip to the page after that, you'll see again spelled out a number of conditions. And so at some point in your deliberations I'll be discussing, you know, what the Crown theory is in relation to exactly how Mr. Fox is said to have violated these conditions, but those are the conditions for you to read over at some point, please.
With respect to the eight and a half by 14 document, this document simply states what firearms Mr. Fox had registered to him on the relevant dates, and if you flip to Exhibit A, the second page, you see that there are four listed there.
My Lady, at this time, the Crown would like to tender an admission made by Mr. Fox.
THE COURT: All right.
MR. MYHRE: And I have an exhibit copy and a copy for Your Honour. The top copy is the original.
THE COURT: So this would be Exhibit 12.
THE CLERK: Exhibit 12, My Lady.
EXHIBIT 12: Admissions of Fact re Restricted
Firearms dated May 29, 2017
MR. MYHRE: And, My Lady, I would just ask the members of the jury to read this over. It's quite short and I think it's self-explanatory what it admits.
THE COURT: I think if you could summarize, that would be helpful. We don't need serial numbers.
MR. MYHRE: Ladies and gentlemen of the jury, this is an admission that the firearms that you see listed in that second affidavit are all restricted firearms as that term is used in s. 93 of the Criminal Code.
Does that suffice, My Lady?
THE COURT: Yes, thank you.
MR. MYHRE: If we could then page Agent Frank Spizuoco to the court, please.
My Lady, could I stick my head out again? I'm not sure if this --
THE CLERK: Sometimes the paging system doesn't work on certain levels, and seven happens to be one of those.
If you could step inside the box and remain standing. AInside?
THE CLERK: Thank you.
FRANK SPIZUOCO
a witness called for the
Crown, affirmed.
THE CLERK: Please state your full name and spell your last name for the record.
AFrank Spizuoco, S-p-i-z-u-o-c-o.
THE CLERK: Thank you. You may be seated.
EXAMINATION IN CHIEF BY MR. MYHRE:
QAgent Spizuoco, what does ATF stand for?
AAlcohol, Tobacco and Firearms.
QAnd, generally speaking, that's a law enforcement agency, a national agency in the United States that deals with those three particular topics?
AYes, it does.
QThe laws relating to them?
ACorrect.
QAnd how long have you been with the ATF?
AI've been so employed since August of 2001.
QAnd I understand that in the summer of 2016, you were working as an ATF agent in California?
AI was actually the group supervisor, yes.
QAnd on June 27th, 2016, you were contacted by the RCMP?
AMay 27th, correct.
QMay 27th. And they were concerned that there may have been firearms shipped to a person named {Liz M*****} on Lincoln Street in Carson, California?
AThat is correct.
QAnd I understand that you contacted Ms. {M*****}?
AYes, we made contact with her.
QAnd she agreed to meet with you at her residence?
AShe did, yes.
QYou met with her there?
AMyself and a fellow agent, yes, we met with her.
QAnd she showed you to some boxes that she had received?
AYes, she did.
QAnd roughly how many boxes were there?
AThere was approximately 25 boxes.
QWhat did you do with them?
AAfter talking with her, she allowed ATF to take the boxes and we took them back to our field office and stored them in our vault until Monday, the following Monday.
QOkay. And did you look through those boxes?
AYes.
QAll 25 of them?
AAll 25 boxes, yes.
QAnd I understand that you found several handguns?
AYes, we did.
QWhere were they exactly?
AThe four handguns were concealed within the CP unit of a computer, and the other one was by itself in a box.
QOkay. There's a --
MR. MYHRE: could we show the agent Exhibit E, please? Thank you.
QCould you just look through that quickly, Agent Spizuoco. Do you recognize these photos?
AYes.
QDid you take these photos?
AI did, yes.
QAnd what do they depict?
AThe first couple of pictures depict the labelling from the boxes; picture number 4 is a picture of the box that contained the CPU unit prior to opening up; 5 depicts a picture of the CPU unit outside of the packaging; 6 is with the cover lid taken off of the CP unit with the four pistol cases inside; 7 is the pistol cases outside of the CP unit; and then 8 is the picture of one of the firearms; 9, one of the serial numbers; 10, a second firearm; 11, second firearm serial number; 12, the third; 13, the serial number of that firearm; and then 14, another -- an additional firearm; and then 15, the serial number of the -- of the last one.
QNow, the labels that we see on the first three pages, were those labels on the box in which the firearms were found?
AYes, correct.
QIn addition to those four handguns, did you find any ammunition?
AYes, there was ammunition.
QCould you give the jury an idea of roughly how much and where you found it?
AThere was approximately 25 rounds and they were found in a -- in an additional box I don't believe was sent on that same day.
QDid you find any pistol magazines?
AYes. There was a total of seven pistol magazines.
QWere there actually magazines inside the handguns we just looked at?
AYes. All of the pistol cases had two, except one of the firearms only had one.
QOkay. And you mentioned -- you said there was another one by itself in a box when you were talking about firearms. Did you find something else that's not in these pictures?
AYes, there was another firearm that was a Mauser, an old Mauser 8mm rifle, yes.
QAnd that was a bolt-action rifle, it had a wooden stalk?
AYes. It was in pieces. It wasn't attached in the boxes.
QThere were also some Canadian licensing documents?
AYes.
QDo you remember whose name those were in?
AThey were in Richard Fox. Or Patrick Fox. Excuse me. Patrick Fox.
QDid you find any documentation related to United States registration or licensing?
AI did not.
QAnd the handguns, they're still in ATF possession no California?
AYes, they are.
QAnd the rest of the boxes?
AThe rest of the boxes were returned back to Ms. {M*****}.
MR. MYHRE: My Lady, could this exhibit now be marked?
THE COURT: All right. No objection?
THE ACCUSED: No objection.
THE COURT: All right. Members of the jury, the book that we marked for identification, Exhibit E, we're now going to give it an exhibit number, which will be?
THE CLERK: Exhibit 13, My Lady.
THE COURT: Thank you.
EXHIBIT 13: Binder titled "Photos - ATF
Seizure" (formerly E for Identification)
MR. MYHRE: My Lady, those are all my questions for Agent Spizuoco.
THE COURT: Thank you. Mr. Fox?
CROSS-EXAMINATION BY THE ACCUSED:
QAgent Spizuoco, you mentioned that the RCMP had contacted you not in June of 24 -- not on June 27th, but actually around May 27th, 2016; is that correct?
ANow, you're right, it was June 17th when initially the --
QOh.
A-- the RCMP connected -- contacted our field division, yes.
QOkay. So, now, sorry, I'm a little unclear. Crown had asked if they had contacted you on June 27th, and then you said, no, it was May 27th, but it was, in fact, June 17th, you say?
AI believe it was. I don't remember --
QNo, I'm just trying to clarify.
AYes. I don't believe it was May 27th.
QOkay. And you had testified that there were approximately 25 boxes, correct?
ACorrect.
QCould you describe for us not in great detail, but just in -- generally what the contents of many or most of box would have been?
AThere was lots of electronic equipment, there was clothes and personal effects and stuff like that, yes.
QOkay. What -- what would you say the majority of it might have -- might have been?
AI would say electronic equipment.
QComputers and such?
ASome of them appeared to be, yes.
QAnd how many -- how many clothes would you say there were -- there were?
AApproximately five boxes full of clothes.
QNow, do you know on which date the box -- the particular box in question in which you found the guns, which date that box was delivered to Ms. {M*****}'s residence?
AI believe --
MR. MYHRE: Objection. I'm not sure Agent Spizuoco can answer that.
THE ACCUSED: Oh, well, that's why it was phrased as does he know.
THE COURT: All right. What we're trying to stay away from here is hearsay.
THE ACCUSED: Right.
THE COURT: So the right way to approach it might be does he have any firsthand knowledge or if he does know, what's the basis of his knowledge. And -- and before you ask him to give a date, ask if he knows, but without saying the date, and if he does know, how does he know, and then we'll know whether his knowledge is based on hearsay or not.
THE ACCUSED: Thank you. Thank you, My Lady.
QAgent Spizuoco, do you have any firsthand knowledge of the dates or even the approximate date that the box containing the firearms was delivered to Ms. {M*****}'s home?
AI do not.
QAnd do you have any firsthand knowledge of whether or not Ms. {M*****} received that package or was home at the time that the package was delivered?
AI do not know that either.
QOkay. Do you have any firsthand knowledge about how many people may have come in contact with or handled that box after it was delivered and -- between the time it was delivered and when you took custody of it?
AI do not.
QDo you have any firsthand knowledge of whether that box had been opened and its contents changed?
AI do not.
THE ACCUSED: Sorry, I'm just trying to think how I would phrase this next question. Well, no, I -- I guess that really would be all the questions I would have, then.
THE COURT: If there's another question that you'd like to ask but you're not sure how to ask it, we can ask the jury to step outside for a moment, ask the witness to step outside, and I can help you with that, but if you have finished your questions, that's fine, too.
THE ACCUSED: I would like to do that, My Lady. On the other hand, I don't want to inconvenience the jury any more than what would be absolutely necessary.
THE COURT: If -- if you have further questions you wish to ask, you should ask them.
So, members of the jury, if you wouldn't mind, please.
(JURY OUT)
THE COURT: And, Agent Spizuoco, I'll ask you to step outside the courtroom, please.
AYes, My Lady.
THE COURT: Thanks.
(WITNESS STOOD DOWN)
THE ACCUSED: My Lady, what I'm trying to get at is whether it would be reasonable that the firearms may have been put into the box or into the computer, which may have been put into the box, prior to Agent Spizuoco taking custody of the box. Obviously that's not something I can ask him directly. He would have no knowledge of that. So might it be a suggestion or...
THE COURT: Well, lawyers often give the advice that in cross-examination it's best not to ask a question if you don't know the answer, and that it -- another piece of advice that's often given is if you've got what you want, don't ask that extra question that then takes it all away.
You do have evidence from the agent that he doesn't know whether Ms. {M*****} was home when the package was delivered, he doesn't know how many people came into contact with the box after it was delivered and before he opened it, he doesn't know whether the box had been opened before he opened it. That may be all you need if you're trying to suggest that the possibility was there that something -- that someone else had access to the box.
THE ACCUSED: Right. Right.
THE COURT: It's then, if that's what you wish to do, open to you to argue that matter before the jury.
THE ACCUSED: Thank you. That was very, very helpful. I would then just have one more question for him.
THE COURT: But -- but let me make sure that Mr. Myhre agrees that the evidence is as I described it, roughly.
MR. MYHRE: I agree, My Lady.
THE COURT: Generally we don't then go on to ask witnesses, well, you'd agree, therefore, that it's possible that something --
THE ACCUSED: Right.
THE COURT: -- happened. That's something for the jury to draw inferences about, and it's not really helpful to them to have a witness say, yes, it's possible, and the danger for you is that he might say, no, it's not possible and here's the reason.
THE ACCUSED: Right. Right. Thank you.
THE COURT: Is there anything that should be added, Mr. Myhre?
MR. MYHRE: Not that I can think of.
THE COURT: All right. Are there other questions that you might want to ask that you'd like to ask about?
THE ACCUSED: No. No, thank you.
THE COURT: And it's certainly open to you to ask further questions along that line that we were just canvassing if you wish to, but I'm just trying to -- and if you did, you would probably put your question in this way: So you can't say whether somebody could have put firearms into that box at some point along the way before you opened the box?
THE ACCUSED: Right. The one question that I do anticipate asking at this point, actually, is completely unrelated to -- to that, but that was very, very helpful, the information that you provided.
THE COURT: Now, are we ready to continue on with the jury?
THE ACCUSED: Yes.
THE COURT: And do you expect to be more than a minute or two or three?
THE ACCUSED: I do not. Two quick questions and then --
THE COURT: All right.
THE ACCUSED: -- then I'm done.
THE COURT: So we won't take the morning break yet. Could we have the jury back in, please, and the witness.
FRANK SPIZUOCO, recalled.
THE SHERIFF: The jury, My Lady.
(JURY IN)
THE COURT: Thank you, members of the jury.
CROSS-EXAMINATION BY THE ACCUSED, CONTINUING:
QMy apologies, Agent Spizuoco. Just a couple more questions, if I may. The first is you had mentioned that in one of the packages there was some ammunition?
ACorrect.
QWas it -- was it all the same calibre?
AIt was not.
QOkay. Was each -- what -- was there one round of each different calibre type?
AI don't remember that, but it was all assorted.
QRight. Okay, thank you. And the last question I would like to ask is do you have any knowledge, any firsthand knowledge of my presence in Los Angeles between the time that the package may have been delivered and when you took possession of it?
AI do not.
THE ACCUSED: Okay. Thank you. That is all.
THE COURT: Thank you. Mr. Myhre?
MR. MYHRE: Nothing arising, My Lady.
THE COURT: Thank you very much for coming, Agent.
ANot a problem. Thank you.
(WITNESS EXCUSED)
THE COURT: All right. We will take the morning break. Thank you, members of the jury.
(JURY OUT)
THE COURT: Mr. Myhre, you were going to call Mr. Lagemaat on the break, please?
MR. MYHRE: Thank you.
THE COURT: Anything else before we stand down? Thank you.
THE CLERK: Order in court. This court stands adjourned for the morning recess.
(PROCEEDINGS ADJOURNED FOR MORNING RECESS)
(PROCEEDINGS RECONVENED)
(JURY OUT)
MR. MYHRE: My Lady, before I forget, the Crown would like to apply at this time to amend the indictment to accord with the evidence given by Manvir Mangat, and specifically the Crown would like to amend the dates on Count 2 to be from May 17th, 2016 to May 18th, 2016.
THE COURT: May 17th?
MR. MYHRE: To May 18th.
THE COURT: 2016?
MR. MYHRE: Yes.
THE COURT: All right. Mr. Fox, do you have a position?
THE ACCUSED: I honestly wish that he would use a larger range for -- for the reason that I wouldn't want the government to come back down the road and say, oh, we changed our mind, we think you did it on this day and week later, and then once I'm acquitted of a given range, then it would be done with. So my preference would be that they put it from May 17th, say, to May 27.
MR. MYHRE: My Lady, the application is to have the indictment conform to the evidence and, in my submission, the evidence is pretty clear from Mr. Mangat that he took control of the boxes from Mr. Fox on May the 17th, and could have gotten them back at Mr. Fox's request up until about four o'clock the next day, until they went into the possession of UPS.
THE COURT: I have some questions to ask you. I'm not sure who the next witness is and whether it should take place in the presence of the witness.
MR. MYHRE: Constable Dupont's evidence doesn't relate at all to this area of the evidence.
THE COURT: All right. You're Constable Dupont obviously.
Possession can involve -- well, possession in its most basic terms is knowledge of the location and control over the location, and arguably Mr. Myhre could, it appears, continue even after the boxes were shipped into the U.S. There might be an issue about whether a Canadian court could hear a charge that relates to that period of time when the item is in the U.S. but the person is in Canada. I'm not sure. Mr. Fox is clearly concerned that an acquittal over a very short time range might not prevent a further prosecution based on a continuation of the possession that's alleged in this trial. Do you have any response to that concern?
MR. MYHRE: My Lady, it doesn't seem to me that Mr. Fox really has any control over that and I can't speak to what may happen in the future. It does seem to me that once he no longer has the ability to call those firearms back and they go into the United States, if there is any offence not being committed in Canada and that's why the Crown's not seeking a range that extends to the time once they are in UPS's possession and then down in California.
THE COURT: Well, if they're in the possession of a friend of his, then arguably he would have the ability to control them, and although they are in the U.S., he is in Canada, and that might be sufficient for jurisdiction in a Canadian court, and perhaps his concern is about an American prosecution over the same subject matter.
MR. MYHRE: Well, that could well happen, My Lady. I certainly wouldn't want to get in the way of that. But the Crown theory is quite specific that Mr. Fox wasn't entitled to either walk his firearms down to Mr. Mangat's waiting truck or drive them himself over to the Packaging Depot or have them at the Packaging Depot in the possession of Mr. Mangat or have them in the possession of TNT when he still retained knowledge and control.
THE COURT: Count 2 reads -- alleges between May 18 and June 3, so there never was an allegation past June 3. How about applying to amend to change May 18 to May 17 and leave the June 3 as it was, and that would prevent any prejudice to Mr. Fox of the type he was speaking of as a result of the amendment?
MR. MYHRE: I'm content with that, My Lady.
THE COURT: All right. Would that answer your concern, Mr. Fox?
THE ACCUSED: Thank you. Yes, My Lady.
THE COURT: So Count 2 will be amended to change the first date between -- which now reads between May 18, 2016, change that to May 17, and that conforms to the evidence Mr. Mangat gave concerning May 17, and doesn't narrow the time period giving rise to the potential prejudice that Mr. Fox identified. All right.
MR. MYHRE: Now, My Lady, could I just canvass with Your Ladyship and Mr. Fox how I lead evidence from Constable Dupont? Generally speaking, Constable Dupont's evidence is that he observed an interview between another officer and Mr. Fox during which that other officer told Mr. Fox several things about how his actions were causing Ms. Capuano to feel, and so they're relevant to whether Mr. Fox knew that she was harassed at the time.
It seems to me that the way to most accurately put this information in front of the jury is to ask Constable Dupont to actually read that other officer's words from the transcript, rather than have him from memory summarize what the other officer told Mr. Fox, and so my intention would be to, through questions, establish that Constable Dupont has a transcript, he's reviewed it, it appears to be accurate, and then ask him about several -- four specific statements that were said to Mr. Fox. And I want to canvass that because it's a little unusual in terms of how we bring out evidence, but at some -- it seems to me that it would be the most accurate way to do it so that we don't mischaracterize anything Mr. Fox was told by the other officer.
THE COURT: Well, the reason it's unusual is because usually there would be an interim step of proving that the transcript was accurate. Is that what you're raising?
MR. MYHRE: Just that it would be a little unusual to have a witness read from a statement rather than state things from memory.
THE COURT: All right. And then why would that be unusual?
MR. MYHRE: Only because we typically ask witnesses not to refer to their notes unless they need to to refresh their memory for some purpose. Here I'm proposing to do that a little bit differently for the sake of accuracy.
THE COURT: All right. Mr. Fox, do you understand what's being suggested?
THE ACCUSED: I do. I don't have any issue with the use of the transcript, but maybe I'm a little unclear, then, it seems like what we're talking about is that Constable Dupont is going to be testifying that he observed Constable Huggins [phonetic] make particular statements to me during my interview, and that that is intended to be -- to -- to be evidence that I should have known at that point that Capuano was fearful. Could I see [indiscernible/voices overlapping] --
MR. MYHRE: That's fine.
THE ACCUSED: -- before I agree to anything?
MR. MYHRE: I'd be happy to show Mr. Fox the specific statements I'll be asking Constable Dupont about.
THE COURT: All right. Is that going to take long?
MR. MYHRE: I think there are four sentences, literally, so it should only take a couple minutes.
THE COURT: All right. Shall we stand down briefly?
MR. MYHRE: That might be best.
THE COURT: Very well.
THE CLERK: Order in court. This court stands down.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
(JURY OUT)
MR. MYHRE: I did canvass that with -- I did canvass that with Mr. Fox. He's clear on what statements the Crown is leading in evidence.
THE COURT: And you're content with that process?
THE ACCUSED: Yes. Yes, I -- I did express some concern to Mr. Myhre that I'm a little uneasy with the idea of the layers of separation between the statements that may have actually been made by Ms. Capuano to Mr. Huggins and -- because it seems unusual to me that we have one officer -- or one constable testifying that he observed another constable say things to me, but there's no way to determine how the original constable may have gotten the information.
THE COURT: Right. Well, that's something you could consider cross-examining about.
THE ACCUSED: Right.
THE COURT: And formulate some questions that would have the effect of making that point.
THE ACCUSED: Thank you.
THE COURT: All right. So we will proceed in the way you outlined, Mr. Myhre.
MR. MYHRE: Thank you, My Lady.
THE COURT: Are we ready with the jury?
THE ACCUSED: Yes.
THE COURT: For the jury? Yes, please.
THE SHERIFF: The jury, My Lady.
(JURY IN)
THE COURT: Thank you, members of the jury.
Before we start with the next witness, I will tell you that a small change has been made to one of the dates in Count 2 of the indictment. When we get to the end of the trial I will give you the written text of the indictment and you will, in any event, have a copy of it with you in the jury room, but I'll tell you now that one of the dates has been changed.
Count 2 did read that between May 18, 2016 and June 3, 2016, certain things happened, and it now reads between May 17 instead of May 18, 2016, and June 3, 2016, etc., and that amendment was made to allow the indictment -- to correct the indictment to conform with the evidence that you heard given. It's not unusual for a correction of that nature to be made. All right?
MR. MYHRE: My Lady, the Crown's next witness is Constable Jean-Philippe Dupont.
JEAN-PHILIPPE DUPONT
a witness called for the
Crown, sworn.
THE CLERK: Please state your full name and spell it for the record.
AFull name is Constable Jean-Philippe Dupont, J-e-a-n hyphen P-h-i-l-i-p-p-e, last name Dupont, D-u-p-o-n-t.
THE CLERK: Thank you. You may be seated if you like.
EXAMINATION IN CHIEF BY MR. MYHRE:
QConstable Dupont, how long have you been a member of the RCMP?
AI've been a member of the RCMP since May 2015.
QI understand that in the summer of 2015 you were one of a few officers who were investigating a complaint made by Desiree Capuano regarding her ex-husband Patrick Fox?
AThat's correct.
QAnd you were aware at that time that she had already contacted the RCMP earlier that year?
AYes.
QAnd I understand that on July the 20th, 2015, you and your partner, Constable Huggins, arrested Patrick Fox?
AYes.
QAnd you spent a few hours with Mr. Fox that evening?
AYes, I did.
QWould you recognize Mr. Fox if you saw him again?
AYes.
QDo you see him here in this courtroom?
AYes, I recognize him.
QWhat's he wearing, please?
AHe -- he is sitting at the [indiscernible] table wearing a red outfit.
QThe evening of July the 20th, 2015, at the Burnaby detachment, I understand that you monitored from outside the room as Constable Huggins conducted an interview of Mr. Fox; is that right?
AYes, that's right.
QAnd you were able to see and hear everything that was going on in the room?
AYes, as it was audio and video-recorded.
QAnd you know that I've asked for you to come and testify today about some of the things that Constable Huggins said to Mr. Fox during that interview?
AYes.
QOkay. And specifically things that Constable Huggins said to Mr. Fox about Ms. Capuano's feelings regarding some of his actions?
AYes.
QNow, you've actually, in preparation for testifying, reviewed a transcript of the interview that Constable Huggins did?
AYes, I did.
QYou have the transcript there in front of you?
AI do.
QAnd could you please just take your time and tell the jury each of the four statements regarding what Constable Huggins said to Mr. Fox about how Ms. Capuano was feeling about some of his actions?
AYes. So there are four statements that were highlighted. This was said by Constable Huggins as I was monitoring. On the transcript, it appears on line 279, where Constable Huggins says [as read in]:
She doesn't want any of this contact she is getting with the emails, with the website, and private investigator.
At line 291, Constable Huggins said to Mr. Fox --
THE COURT: Can you speak up just a little bit, please --
ASure.
THE COURT: -- Constable?
AYes. So 291, Constable Huggins said to Mr. Fox that [as read in]:
She does fear that if you were able to get across the border without being noticed, that you would go there and shoot her.
So that carries from 291 to 293. Then line 321, Constable Huggins says that:
On the website you have written this stuff as if it's her and she was concerned that people would take offence to that, might come to the house and act on that.
That was the third statement. And the fourth one was at line 351, where Constable Huggins says:
And your actions are potentially causing someone to be harmed and she has a legitimate fear for her safety.
MR. MYHRE: My Lady, those are all my questions for Constable Dupont.
THE COURT: All right. Thank you. I know you've been in and out a lot this morning, members of the jury, but I'm going to ask you, please, one more time if you wouldn't mind returning to the jury room. Thank you.
(JURY OUT)
THE COURT: And, Constable Dupont, I'm going to ask you to step out of the courtroom, please --
AYes, My Lady.
THE COURT: -- briefly.
(WITNESS STOOD DOWN)
THE COURT: My concern, Mr. Myhre, is that while this evidence is admissible -- subject to cross-examination and further evidence on the matter, but it's admissible, as you outlined, concerning Mr. Fox's state of knowledge at the time of the interview, it introduces a great deal of hearsay evidence about Ms. Capuano's state of mind, her fears for her safety, and, indeed, it introduces a comment that her fear for her safety is legitimate. So it seems also to go to whether her stated fears are reasonable. And it appears to me that an instruction needs to be given to the jury before Mr. Fox is called on to cross-examine.
Now, the interview was, I believe, July 20, 2015, is that correct?
MR. MYHRE: Yes, My Lady.
THE COURT: And what are the allegation about things that took place after that?
MR. MYHRE: Sorry, My Lady, I don't understand the question.
THE COURT: Well, is Mr. Fox alleged to have continued the alleged harassment after July 20?
MR. MYHRE: Yes, well, the indictment does charge him for a period January 2015 to May 2016.
THE COURT: So what specifically is he said to have done after his arrest?
MR. MYHRE: We saw in evidence a couple more emails, and then it's primarily the continued existence of a website and the things that were put on it.
THE COURT: Can you show me the emails, please, that post-dated this interview?
MR. MYHRE: They'd be right at the end of the exhibit, Exhibit 1, My Lady. So Tab 17 is the last email dated November 14th, and so of significance here really is the third paragraph.
THE COURT: "You will soon be homeless," that type of statement?
MR. MYHRE: Yes, and going on to remind her of the website's existence and that he wouldn't be going anywhere.
THE COURT: All right. Thank you.
MR. MYHRE: And then the email at Tab 16 relates to a complaint that James Pendleton made to a web server that was then forwarded to Mr. Fox.
THE ACCUSED: I'm sorry, what was the other email?
MR. MYHRE: Tab 17, the very last one.
THE COURT: Does Tab 16 include anything said to have been written by Mr. Fox?
MR. MYHRE: In the sense that, as we established at the outset, these are all printouts from Mr. Fox's website, and so the Crown contention would be -- I mean, you can see that it appears to have been forwarded to Patrick at desireecapuano.com, and the fact that it's on his -- the website that he published, from that it could be inferred that he knew of this complaint.
THE COURT: I see. All right. Thank you. Mr. Fox?
THE ACCUSED: With respect to the email at Tab 17 regarding {G*****}'s visitation for winter break, the first point that I would want to make on that was that the RCMP had told me it was one of the -- it was in the recognizance when I was released from that arrest in 2015 that I was permitted to contact Ms. Capuano for the purpose of making travel arrangements for {G*****}'s visitation. The other relevant point here, I believe, is that she was the one that initiated this communication. I was responding to her. So I -- I have difficulty seeing how that could be harassment if she contacted me.
THE COURT: All right. That may be something you will want to argue.
THE ACCUSED: Sure. And with respect to the email in Tab 16, that email was never sent to Ms. Capuano, that was actually an email I had sent to my friend Liz forwarding the email I had received from web.com.
THE COURT: All right.
All right. We're going to stand down very briefly. I will develop a short instruction to the -- to the jury and then we'll come back, resume, I'll give the instruction and we'll continue.
MR. MYHRE: Thank you.
THE CLERK: Order in court. This court stands down.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
(JURY OUT)
MR. MYHRE: Pardon me, My Lady, I think these might be the documents for Mr. Fox.
THE ACCUSED: Thank you. My Lady, I apologize. It didn't occur to me until I was brought downstairs, but another very relevant point on what we were discussing was the statement in question took place at the time of the arrest in July 2015. That original criminal harassment charge was stayed by the Crown and I was informed of that sometime in mid-October, 2015. So by the time that -- that email was sent to Ms. Capuano in December, the no contact order and the charge itself had been vacated, and so I wasn't actually under any order to not have contact with her.
And I believe that it would have been a reasonable inference on my part given that the charges had been stayed that the Crown -- and this is purely an inference -- that the Crown did not consider her allegations to be credible at that time.
THE COURT: Well, Mr. Fox, the difficulty is we don't have evidence about that.
THE ACCUSED: Right.
THE COURT: The Crown is -- and the instruction I'll be giving the jury is to make clear to the jury that the only potential relevance of this evidence is concerning your state of mind as of the time of the interview and after. In other words, you had been told that Ms. Capuano was fearful. It's another question as to whether that was an accurate statement, whether her state of mind changed, if that was an accurate characterization, but there's no evidence that -- in fact, I'm not even sure we've got evidence that the charges were stayed, and we certainly don't have evidence about why if they were, and we also don't have any evidence about what you would have concluded from the staying of the charges. So if you're going to be asking the jury to draw inferences about those kinds of things, you will either need to establish an evidentiary basis by cross-examining Constable Dupont perhaps -- I don't know what he knows --
THE ACCUSED: Mm-hmm.
THE COURT: -- but he may be able to give you the evidentiary basis that you're looking for, or you will need to -- as I understand, he's probably the Crown's last witness, is that right? Or you will need to call some defence evidence yourself to do that, either your own testimony or some other defence evidence. But it's not something that I can address at this stage with the jury.
THE ACCUSED: Right.
THE COURT: All right. Now, if I have the jury back in, give them that instruction, do you then feel ready to go ahead and cross-examine?
THE ACCUSED: Yes.
THE COURT: All right. Can -- I'm not trying to hurry you up, but I'm just trying to look at the overall schedule. Do you have any rough idea how long you'll be?
THE ACCUSED: I don't, but I would prefer that we break for lunch and then I do -- oh, but would that cause any complications on your end or -- because I know you were hoping to finish before lunch.
THE COURT: We need to take the time that gives you the time you need.
THE ACCUSED: Could we do it after lunch?
THE COURT: We can.
THE ACCUSED: Thank you.
THE COURT: So I'll ask the jury to come in, I'll give them that instruction, then we'll take the lunch break.
THE ACCUSED: Thank you.
THE COURT: Although I -- I do want to talk to both you and Mr. Myhre before we break for lunch.
THE ACCUSED: Okay.
THE COURT: All right. Could we have the jury, please?
(JURY IN)
THE COURT: Members of the jury, before we go on, I need to give you an instruction, and this is another one about hearsay evidence. Earlier in the trial I gave you an instruction about hearsay evidence and that was after Ms. Capuano testified about a job offer from Pima Community College being withdrawn, and I told you that the evidence she gave on that point was hearsay evidence, the point being why it was withdrawn, because nobody was here from Pima to testify and be cross-examined. I told you at that time about the way in which the hearsay evidence could not be used and the way in which the hearsay evidence could be used.
Now, you've just heard some more hearsay evidence. Constable Dupont was asked to testify about things he heard Constable -- it was Huggins say to Mr. Fox in an interview about how Ms. Capuano was feeling, her state of mind. Now, unlike Pima representatives, Ms. Capuano did testify in this trial and she gave evidence about how she felt at various times. That evidence, the evidence that she herself gave under oath, is her evidence on that subject, the subject being her state of mind, not the hearsay evidence that came through Constable Huggins and Constable Dupont.
You can use the hearsay evidence that Constable Dupont gave about Ms. Capuano's state of mind only as evidence of what Mr. Fox was told, that he was told those things, so you can use it as evidence relating to Mr. Fox's state of mind at the time of the interview, which was July 20, 2015 -- do I have that correctly? Yes. Thank you -- and following, but that hearsay evidence has no bearing on Mr. Fox's state of mind before the date of the interview, naturally, and, as I've already said, it is not evidence of what Ms. Capuano's state of mind actually was. She's the one who gave that evidence.
Also, you must disregard completely any comment or opinion that may have been expressed by Constable Huggins in the interview. Constable Huggins' opinions are not relevant to the issues you need to decide.
Now, that instruction and consideration before giving it has occupied some of the time that we thought would be available for the conclusion of Constable Dupont's evidence, so we're going to break for lunch now and Constable Dupont's evidence will conclude after lunch.
So thank you very much for your attention this morning and for the comings and goings, your patience with the comings and goings. We'll break now, resume at 2:00, and I expect I'll be able to give you this afternoon a projection of our -- our timing in -- in the coming week. All right. Thank you.
(JURY OUT)
THE COURT: Now, Mr. Myhre, I don't think I need to bring Constable Dupont in to excuse him until 2:00, I assume. Is there anything else we should discuss? Mr. Fox, are you further along on the question -- or do you wish to wait until the Crown has closed its case on the question of whether you're likely to call evidence?
THE ACCUSED: I'm not likely -- no, I could be more definitive than that.
THE COURT: And let me, first of all, say that if you need time to consider the matter further, if you need an opportunity to get some legal advice, I'll certainly make that possible for you.
THE ACCUSED: Thank you. I do not plan to call evidence.
THE COURT: All right. So most likely, then, after lunchtime we'll conclude the cross-examination, we'll excuse the jury, I would think, until tomorrow, and what I propose is that during the remainder of the afternoon, we have some discussions about the content of the charge. I think some greater precision would be helpful about the theory of the Crown so that that can be -- portions of the charge can either -- that I've got thus far can either be deleted or not and I can best determine what needs to be in the charge and what does not.
Any concerns before we stand down? Mr. -- was -- did you receive your notes from Mr. Lagemaat?
THE ACCUSED: Yes, I believe they're here. His notes appear to not be here, but that's not too critical, I guess.
One -- one thing that I did want to discuss possibly, though, is before -- before we provide our closing arguments, I would like to request that I have a little bit of time to prepare those. What I mean by a little bit of time, it would probably end up being an entire day, unfortunately, because even though we might get out of court early on a given day, I don't actually get back to the jail until maybe seven o'clock in the evening, and then the following day I would be woken up at 5:00 a.m. to come in, unless, of course, that's unreasonable.
THE COURT: No. I'm just wondering do you need to be in the jail in order to prepare or can it be done here?
THE ACCUSED: Well, I'm not allowed -- I'm not allowed to have a pen in my possession in the holding cells downstairs.
THE COURT: Do you have anything to add on this, Mr. Myhre?
MR. MYHRE: No, My Lady.
THE COURT: So that day could well be tomorrow, I would think.
THE ACCUSED: That's what I was thinking.
THE COURT: Then the closing arguments could be Wednesday. Mr. Myhre, do you have -- I know it's early, but do you have any rough idea of how long yours would likely be?
MR. MYHRE: My Lady, I can say my goal would be to get it down to an hour. At this point, the draft I've written probably runs two hours, so I'm working on making that shorter, a lot shorter.
THE COURT: Well, let's assume you're an hour and a quarter, an hour and a half. Mr. Fox, probably somewhere around the same length?
THE ACCUSED: I would think significantly less. I'm guessing maybe a half hour, but I tend to speak fast.
THE COURT: It's very rare that I would want to ask a jury to listen to both closings and a charge in the same day and then start deliberations, but, on the other hand, I don't want to be having the jury come in for short amounts of time and then go away again and -- it may be that the charge will be fairly short and this might be one of those cases where all of those things could take place in the same day. Mr. Fox?
THE ACCUSED: One possibility might be if the sheriffs would be okay with me having a pen or a pencil in the holding cells, I'm not sure, and -- I know typically they don't permit that, though. And then I would be able to work on it while I'm here.
THE SHERIFF: We can permit the pen in the -- in the cell, My Lady.
THE COURT: All right. Is -- is it a suitable place for you to work on -- on it, Mr. Fox?
THE ACCUSED: Yeah. It's quiet, there's no distractions.
THE COURT: Mr. Myhre, if we have a discussion this afternoon about the content of the charge, and I ask this because of an earlier statement you made, I would foresee giving you and Mr. Fox a draft of the charge -- well, it would be available by tomorrow, but Mr. Fox might not be here to receive it if we stood down for that day, and it might well be that I would expect you each to do your closing addresses before we have a discussion about the details of the charge and the actual text of it. Would that work from your perspective?
MR. MYHRE: I'm okay with proceeding that way, My Lady.
THE COURT: So that could be -- if we stood down tomorrow, the closings Wednesday morning, we could then go over a copy of the charge on Wednesday afternoon and I could make further changes according to your comments. Would that work?
MR. MYHRE: Yes.
THE COURT: All right. And then the jury would be charged on Thursday morning. All right, that might be a good plan to think about. Mull it over over the lunch hour and if there seems to be a problem with that for any reason, let me know, and that would give you, Mr. Fox, tomorrow at the jail to prepare your closing address.
THE ACCUSED: Okay. Thank you.
THE COURT: All right.
THE CLERK: Order in court. This court stands adjourned till two o'clock p.m.
(PROCEEDINGS ADJOURNED FOR NOON RECESS)
(PROCEEDINGS RECONVENED)
THE COURT: Are you ready, Mr. Fox?
THE ACCUSED: I am, yes, thank you.
THE COURT: The jury, please.
THE SHERIFF: The jury, My Lady.
(JURY IN)
JEAN-PHILIPPE DUPONT,
recalled.
CROSS-EXAMINATION BY THE ACCUSED:
QGood afternoon, Constable Dupont.
AGood afternoon.
QOn July 20th, 2015, that's the date that I was arrested, you participated in that arrest; is that correct?
AYes.
QAnd were you also involved in any investigation into that matter?
AYes.
QCan you tell me just very briefly what your involvement was?
AWe'd received the complaint from Mrs. Capuano and it was a complaint of the criminal harassment, so my investigation consisted of gathering the elements of the offence and in that case we -- we were trying to -- to gather the information from her as to whether she feared or not for safety, and my part of the -- my first part of the investigation was to get a statement from her over the -- the phone.
QOkay. So -- so it was actually you that had spoken with Ms. Capuano, correct?
AI did speak with her over the phone.
QOkay. And then after I gave the statement, was I released from custody at that point?
AI cannot recall.
QDo you recall if I was released on my own recognizance, maybe with some conditions?
AI would have to refer to my notes, My Lady.
THE COURT: Would you like him to refer to his notes?
THE ACCUSED: Sure. Yes, please.
THE COURT: Please.
AYes, I -- I do have notes here that you were released at -- it would have been at midnight and 52 minutes, so 052 hours on July 20th, and you would have been released at your home in that case.
THE ACCUSED:
QOkay. But I don't suppose your notes indicate whether there were any conditions? For example, I'm wondering in particular about a restriction on contacting or communicating with Ms. Capuano.
AI do not have notes in that.
QOkay. So, let's see, do you recall when it was that I was scheduled to appear in court on that original charge?
AI don't recall.
QOkay. Do you recall whatever happened with that original charge from 2015?
AFrom what I remember, the original charge that was forwarded to Crown did not go through and --
QOkay.
A-- there was a stay of proceedings, from what I recall.
QOkay. So the charges were -- or the charge was stayed; is that correct?
AThat's -- that's correct.
QAnd do you have any firsthand knowledge perhaps of why it was stayed?
MR. MYHRE: My Lady, at this point, I object.
THE ACCUSED: Okay.
QDo you recall contacting me by telephone on October 30th, 2015?
AI -- I do recall contacting you by phone at some point following the investigation. I do not recall the exact date, though.
QOkay. And was that contact for the purpose of informing me that you had some documents that you wished or needed to provide me?
AYes.
QAnd did you then meet with me on October 31st, 2015 in the afternoon in front of my apartment?
AI did meet with -- with you in front of your apartment. I didn't -- like I say, I do not recall the exact date.
QSure. Sure. Now, do you recall at that meeting me asking you why the charge had been dropped?
AI do not recall.
QOkay. So then I -- well, if you don't recall that, I'm going to assume you don't recall what your response was, obviously. Let me phrase it this way: Do you recall telling me at that time that sometimes you have a case, it's just very weak?
AI don't recall saying that.
THE ACCUSED: Okay. I don't believe I have any further questions, then.
THE COURT: Anything arising?
MR. MYHRE: No, My Lady.
THE COURT: Okay. Thank you very much, Constable.
AThank you.
(WITNESS EXCUSED)
MR. MYHRE: My Lady, I think there's something that needs to be discussed, unfortunately, in the absence of the jury.
THE COURT: All right. Members of the jury, please.
(JURY OUT)
MR. MYHRE: My Lady, it seemed to me that Mr. Fox was trying to just draw out the conditions of his recognizance and the length for which he was on those conditions. I would have no problem admitting that as a matter of fact if I -- I would just have to go and get the actual document to confirm what the conditions were and how long it was in place, and I wanted to address that before I close the Crown case because if it's that kind of admission, then it -- it would be part of the Crown's case. I -- I should say I -- it doesn't particularly relevant to me, but I don't think it's completely irrelevant, so I'm not opposed to making that admission if Mr. Fox wishes it.
THE ACCUSED: I don't believe it's going to be necessary really. That was leading up to something else, and given that his memory was so unclear of the details, I don't think that it would have helped.
THE COURT: All right. So you're content that there be no evidence that you were under conditions? Because I don't think I recall any other evidence that you were placed on a recognizance and subject to conditions.
THE ACCUSED: Right. It wasn't so much the condition that I was interested in, but the allowance for the context for the purpose of -- for arranging {G*****}'s travel accommodations, but, as I said, that was really leaning toward another admission, but he has no real recollection of our meeting on October 31st.
THE COURT: If it's important to you that it be in evidence that you were specifically permitted to communicate about {G*****}'s travel, then this may be the way that that could be done. Would that -- does that appear as an exception to a condition on the recognizance, Mr. Myhre?
MR. MYHRE: My Lady, I've actually never looked at that 2015 recognizance myself.
THE COURT: Oh.
THE ACCUSED: The only condition on it was that I'm not permitted to contact Ms. Capuano other than to make the travel arrangements.
THE COURT: And that's not important for you that it be in evidence?
THE ACCUSED: Not for what Constable Dupont was testifying to. I mean, maybe that might have some relevance with the issue of Ms. Capuano's fear for her safety in that she's afraid for her safety, but not if it's to make travel arrangements. So, no, I don't -- I don't think it's really going to be necessary or overly relevant.
THE COURT: Just set aside Constable Dupont's evidence for the purpose of discussion and think about the trial as a whole.
THE ACCUSED: Mm-hmm.
THE COURT: Do you wish it to be part of the evidence that you were subject to a condition that you were to not have contact with her except for arranging {G*****}'s travel?
THE ACCUSED: I think that that might have some relevance, yes.
THE COURT: That seems to be what Mr. Myhre is offering to admit and to tender as part of the Crown's case so that it's not going to require you to call evidence. He is not familiar with what the condition actually was --
THE ACCUSED: Mm-hmm.
THE COURT: -- in that first recognizance, but he's willing to find out and make that admission if that's what it says.
THE ACCUSED: Okay. Yes, thank you.
MR. MYHRE: So, My Lady, I'm just looking at Exhibit 1, and as part of the Exhibit 1 the Crown tendered a section called "Background" and actually -- so Mr. Fox's own words are here [as read in]:
The police told Patrick they would release him on his own recognizance and then he would have to appear for court in October. The condition of Patrick's release was that he was not to -- he was to not contact Desiree other than to make travel arrangements for G.R.'s visitation.
So I -- it looks like that evidence is already before the jury if Mr. Fox wishes to point it out to them, and I -- I won't be suggesting otherwise.
THE COURT: Well, it's there -- thank you, Mr. Myhre -- but will there potentially be some issue as to whether the jury accept that as truth?
THE ACCUSED: That would be my concern because that's not actually an official or something coming from the Crown, that's just me ranting on a blog post maybe or on a website.
MR. MYHRE: My Lady, I'm happy to go back to the office, look at that recognizance, and -- and make the appropriate admission.
THE ACCUSED: Sorry, I'm just -- is there not a copy of it in the disclosure or in the -- one of the RTCCs maybe?
MR. MYHRE: Not that I can recall, I'm afraid.
THE COURT: How do we do this in a way that doesn't keep the jury unnecessarily, because is it still your intention to not call evidence, Mr. Fox?
THE ACCUSED: That is my intention, yes. I wonder, though, if it were -- if an admission were to come from the Crown that that was -- oh, but you want to verify that what I'm saying is true, right, before you --
THE COURT: He would have an obligation to vary it before -- to verify it before --
THE ACCUSED: Sure, sure.
THE COURT: -- making any sort of admission on any matter.
THE ACCUSED: Mm-hmm. To be honest, I don't know that that one point is really going to make an overwhelming difference in the jury's opinion or decision given all the other evidence that they've seen, so maybe it's not really worth putting the time to have Mr. Myhre go look it up and --
THE COURT: Well --
MR. MYHRE: I think it would take me less than half an hour to -- to verify that information. I could come back perhaps with just an oral admission or I could -- it wouldn't be that hard to put it into a document either between these dates and these dates after Fox was bound by a recognizance.
THE COURT: I would think an oral admission -- is it something you can verify by telephoning so that it --
MR. MYHRE: Yes.
THE COURT: So shall we just stand down and see what success you have? Shall I tell the jury or ask Mr. Sheriff to tell the jury we're likely to be about 15 minutes? And then, Mr. Fox, do you feel ready after that? After that, the Crown will close its case, and do you feel ready at that point to what's called make your election as to whether you're calling a defence or not calling evidence?
THE ACCUSED: Yes, My Lady.
THE COURT: All right. So let's stand down now and we'll come back in about 15 minutes.
THE CLERK: Order in court. This court stands down.
(PROCEEDINGS ADJOURNED)
(PROCEEDINGS RECONVENED)
(JURY OUT)
MR. MYHRE: So, My Lady, the Crown can admit that from July 21st, 2015 -- sorry, I'll give you a chance to --
THE COURT: All right.
MR. MYHRE: From July 21st, 2015 until October 27th, 2015, Mr. Fox was bound by an undertaking forbidding him having direct or indirect contact with Desiree Capuano, with the exception of communication regarding travel plans for {G*****} Reiss.
THE COURT: All right. That's something that both parties would agree, then, to have go in as an admission, is that correct?
THE ACCUSED: Yes.
MR. MYHRE: Yes.
THE COURT: Do you wish me to tell the jury the admission or will you, Mr. Myhre?
MR. MYHRE: I'm happy to do it, My Lady.
THE COURT: All right. So we'll call the jury back in in just a moment, we'll deal with that admission, then Mr. Myhre will say that that completes the Crown's case, and then it's customary, Mr. Fox, for me to turn to you, you stand up and you say the defence will not be calling evidence or the defence will be calling evidence, as -- as the case may be.
And assuming it's still your intention that the defence will not be calling evidence, then I will explain to the jury that before we get to the next steps, which will be closing addresses, it's going to be necessary for us to have a little time for people to prepare and I will ask them to come back on -- we still want Wednesday, do we?
THE ACCUSED: Yes, please.
THE COURT: All right.
MR. MYHRE: Yes, My Lady.
THE COURT: And I'm thinking still that the closing addresses will be enough for the jury to take in on Wednesday, even though they won't occupy the full day. It would be difficult for them to take in two closing addresses plus complete instructions from me and then start their deliberations. So if we're all still agreed, I will tell them that Wednesday will likely be a shorter day for them, Thursday will, if we're still on plan, be the day when I'll give them their instructions in the morning and then they'll start their deliberations. All agreed?
THE ACCUSED: Agreed.
MR. MYHRE: Yes.
THE COURT: All right. Please.
THE SHERIFF: The jury, My Lady.
(JURY IN)
MR. MYHRE: Members of the jury, the Crown is making the following admission in this matter: Between July 21st, 2015 and October 27th, 2015 --
THE COURT: That was July 21?
MR. MYHRE: July 21 to October 27, 2015, Patrick Fox was bound by an undertaking forbidding him from having direct or indirect contact with Desiree Capuano, except for communication regarding travel plans for {G*****} Reiss.
And, My Lady, that is the case for the Crown.
THE COURT: Mr. Fox, does the defence intend to call evidence?
THE ACCUSED: The defence does not intend to call evidence, My Lady.
THE COURT: Thank you.
Now, members of the jury, we've had a little discussion about timing. This case from the outset has moved a little more quickly than we anticipated. The next step will be that each of the Crown and Mr. Fox will make their closing addresses to you in the trial, and then following that I will give you the charge to the jury or closing instructions, following which you will begin your deliberations.
A little bit of time is necessary for preparation of these next steps and I'm going to in a few moments excuse you for the day and for tomorrow and will not need you tomorrow. I will ask you to come back on Wednesday morning at the usual time, and on Wednesday morning you will hear the closing addresses. I don't expect that they will occupy the full day, probably nowhere near it, but, nonetheless, I'm then going to ask you to come back on Thursday morning for the final instructions.
Experience tells that for a jury to take in two closing addresses, plus the detailed instructions from the judge in the final charge, is asking quite a lot of a jury in a single day, so we'll break those apart. Wednesday will be the closing addresses, Thursday will be my final instructions to you, and it will be immediately after that that you will start your deliberations and remain together during your deliberations.
Have I overlooked anything, Mr. Myhre or Mr. Fox?
MR. MYHRE: Not that I can think of.
THE ACCUSED: No, I don't believe so.
THE COURT: So I will thank you for your attention today and ask you to come back on Wednesday morning at the usual time. Thank you.
(JURY OUT)
THE COURT: I have been preparing a copy of the charge -- or I have been preparing a draft of the charge, which is as up to date as I've been able to make it. Obviously I haven't yet included reference to today's evidence and that's been most of the evidence relating to Count 2. I have a number of questions to ask both of you.
Mr. Fox, in this process I need to keep in mind that you have chosen not to present a defence, and that entitles you to make the last address to the jury. In other words, the Crown goes first in their closing address and you go last. And in the process of discussing the charge, I do not wish to draw out from you anything about how you plan to make your closing address and what points you plan to emphasize. That would remove the advantage to you of going last. Do you understand what I'm trying to say?
THE ACCUSED: I do.
THE COURT: Nonetheless, we need to have a discussion so that I know if there are particular things you want included or particular things that you feel should not be included, and so that I can make sure I accurately represent the positions of the two parties as best I can. On that last point, I may need to leave that portion of the charge until Wednesday afternoon after the closing addresses have been made.
So have a seat. We -- I'm simply going to go through the questions I have in no particular order. We may need to come back to some of them. Mr. Myhre, you may have points you wish to raise; likewise, Mr. Fox. Is there anything fundamental that should be addressed first? My questions are all a bit more specific.
THE ACCUSED: I don't believe so.
THE COURT: I'll start with Count 2. Mr. Myhre, do I have it correctly that the Crown's position -- and this came out of the application to amend -- but the Crown's position is that that charge relates to the time at which the Crown says Mr. Fox was either involved in transporting the firearms to the Packaging Depot or they were at the Packaging Depot and still within his control, but not the period before that? So I suppose on the evidence we're looking at from the time they were outside the apartment building ready to be given to Mr. Mangat -- was it Mangat? -- until they were beyond the control of Mr. Fox to pull back from the UPS. Is that the Crown's theory?
MR. MYHRE: Yes, exactly, My Lady.
THE COURT: So if that's the case, I need to charge the jury on both physical possession, actual physical possession, and constructive possession, I take it?
MR. MYHRE: Yes, that would be my position.
THE COURT: Okay. And my intention is to deal with that fairly succinctly, constructive possession being the most part knowing where the item is located and having control of its location. Does that sound sufficient, Mr. Myhre?
MR. MYHRE: Yes, from my perspective.
THE COURT: And I take it the Crown's theory relates to four firearms, not the fifth?
MR. MYHRE: Yes, there's not -- there's no charge in relation to the -- the rifle barrel.
THE COURT: Mr. Fox, any submissions on any of those points so far?
THE ACCUSED: No. No, My Lady.
THE COURT: Mr. Myhre, at the outset of trial, or at some point early on, you asked me to make it clear to Mr. Fox that there might be an issue on which he would have an evidentiary burden; namely, lawful authority to have possessed the firearms at a place other than where authorized. As I -- as I look at s. 93(1), I don't see immediately where any such lawful authority would come into play.
MR. MYHRE: So, My Lady, the reference that I was making was to -- and maybe this wasn't clear -- to s. 117.11.
THE COURT: All right.
MR. MYHRE: Which reads:
in any proceedings for an offence under [including s. 93, where] any question arises as to whether a person is the holder of an authorization, a licence or a registration certificate, the onus is on the accused to prove that the person is the holder of the authorization, licence or registration certificate.
THE COURT: But it's the Crown's position that Mr. Fox is the holder.
MR. MYHRE: Yes, and so that would just be --
THE COURT: I can't see how that would come into play.
MR. MYHRE: Yeah, I don't -- I actually don't see how that arises here either. Mr. Fox clearly isn't tendering some other copy of a licence that he says he had, so it just doesn't come into play. I don't think there's a need for any instruction along that line.
THE COURT: All right. Mr. Fox, anything on that?
THE ACCUSED: No, My Lady.
THE COURT: Still on s. 93(1), what was -- portion does the Crown -- now, I have not had an opportunity to look closely at the documents that were filed this morning, but what portion of 93(1) is the Crown relying on, (a), (b) or (c)?
MR. MYHRE: It's (b), My Lady.
THE COURT: Sorry, which one?
MR. MYHRE: (B), "Other than a place indicated on the authorization or licence as being a place where the person may possess it."
THE COURT: So perhaps, since we're all here, you should take me directly to it.
MR. MYHRE: So, My Lady, if we could go to the affidavit of a firearm's officer. It's Exhibit 10. So you may recall I directed the jury to paragraph 6?
THE COURT: Yes. Yes, I'm looking at border crossings.
MR. MYHRE: Yes. So two things, including border crossings. So the Crown's submission would be that his licence would have allowed him to take his firearms to a border crossing, and other language in here, if you look over to the next page, the second last bullet point, "Transport to a port of exit in order to take them outside Canada and from a port of entry." So the Crown submission is that what's contemplated here is personal transportation, not giving them to somebody else to transport out of the country.
THE COURT: It doesn't say that. I can't leave an interpretive issue with the jury. If it's Crown's position that he was in possession by having knowledge and control at least up to the time that it went with UPS, doesn't that weigh in favour of an interpretation that he's also doing the transporting?
MR. MYHRE: Well, My Lady, these are personal licenses, so it was issued to Mr. Fox to do the transport. Mr. Fox couldn't just give his firearms to somebody else to carry to the gun range.
THE COURT: Well, perhaps I need to read the thing as a whole, the affidavit as a whole, but it's not leaping out at me that this is a restriction on -- that requires Mr. Fox to be the person who does any transportation. Perhaps it's there. I haven't seen it yet.
Mr. Fox?
THE ACCUSED: I do just wish to make one correction on Mr. Myhre's statement. Actually, any PAL holder may transfer or give their restricted firearms to any other PAL holder as long as that -- like for the purpose of transport as long as that other PAL holder also has a comparable ATT, and so there is no law that would require that I be the only person that physically transport them. For example, a friend of mine who has a PAL and an ATT can carry them to the shooting range whether I'm with him or not, as long as he has the registrations with him.
THE COURT: Mr. Myhre, can you assist me any further with this?
MR. MYHRE: Yeah, a couple submissions, My Lady. On the first page, the very last bullet point, the ATT authorizes an adult individual to transport, da, da, da, da, da, so it's an authorization to Mr. Fox personally. And, second, when you look at the actual conditions, in my submission, what's clearly contemplated is personal possession, and I say that can be inferred from, for example, the fact that transport -- if you look at the last page of the affidavit, before the Exhibit A, the second last bullet point, so "a transport to a port of exit in order to take them outside Canada." A person who ships their firearms out of the country has no control over whether they're going to a port of exit. Of course, that requirement is there so that they actually do use a port of exit, and documentation can be verified and you can see that other conditions require the person to...
THE COURT: Is there something in the legislative or regulatory scheme that puts the scope of the -- and terms of the authorization a bit more directly? This affidavit paraphrases in a way that certainly gives rise to some ambiguity, but I wonder whether the regulatory scheme itself, the language of it, makes clear what the intent of these provisions is.
MR. MYHRE: I would have to go back and look at it, My Lady.
THE COURT: I think I'm going to need to hear from you on this in more detail. I certainly don't want to be leaving an issue with the jury that's a matter of interpretation. It -- it need -- their role is obviously to make findings of fact, not conclusions of law.
MR. MYHRE: The other terms I was going to refer Your Ladyship to, if you flip to the very last page of this document, it continues to set out the terms, they're apparently printed on the actual ATT. If you look at the last conditions, "The holder must be in possession of the registration certificates for the firearms being transported" and then, lastly, "This authorization allows the holder to transport firearms to and from border crossings on condition the holder is in possession of the necessary U.S. documentation." So, again, in my submission, this ATT is contemplating somebody --
THE COURT: Well, it depends on what "transport" means, whether it means personally take or whether it can mean arrange to be shipped. Maybe it -- maybe arranged to be shipped goes beyond the meaning of "transport," particularly when one looks at the earlier conditions that use that word again and again.
MR. MYHRE: I'll do some reading and try to come back with something helpful tomorrow, My Lady.
THE COURT: Well, we won't be here tomorrow. Mr. Fox wants the day to work on his closing address.
THE ACCUSED: Might I -- might I propose, if there's a need to appear tomorrow, I could possibly appear by video court from the jail.
THE COURT: That's a good point. Mr. Sheriff, is it too late to arrange a video appearance?
THE SHERIFF: I'm not sure, My Lady. I could phone and check. I don't know how that's arranged. Maybe Madam Clerk would be able to --
THE CLERK: It's arranged through In-court Technology, so I would have to speak with them. I don't know if it's too late to --
THE ACCUSED: Mr. Myhre, when you're doing your research, you might check for that page on the RCMP website, and, for the record, I did look into all this beforehand, and all of this of the -- you're debating right now.
UNIDENTIFIED VOICE: [Indiscernible], My Lady?
THE COURT: Madam Registrar is telling me that this gets arranged through In-court Technology.
THE CLERK: I could quickly call them [indiscernible/ away from microphone]. What time?
THE COURT: No idea.
THE CLERK: (Into phone) Is it too late to have a video remand for tomorrow?
THE COURT: Not a remand, it's an appearance.
THE CLERK: (Into phone) For tomorrow sometime, and how much notice do you need to set it up?
How long would the video be and at what time?
THE COURT: It could be at eleven o'clock, and it could be half an hour.
THE CLERK: (Into phone) 11:00 and half an hour. Yeah, it's Mr. Fox in courtroom [indiscernible], because we're not -- we weren't going to sit tomorrow].
THE ACCUSED: Yeah. [Indiscernible/away from microphone] down here because we're talking about [indiscernible] --
THE CLERK: Where is Mr. Fox housed?
THE SHERIFF: Mr. Fox, where are you housed?
THE ACCUSED: North Fraser.
THE SHERIFF: I'm sorry?
MR. MYHRE: Where are you housed?
THE ACCUSED: Oh, Alpha North currently.
THE SHERIFF: No, North Fraser or Surrey?
THE ACCUSED: Oh, North Fraser, yes, yes.
THE SHERIFF: North Fraser.
THE CLERK: North Fraser.
THE ACCUSED: A long time ago, in the very beginning, I told you that in the case what the RCMP --
THE CLERK: We haven't --
THE ACCUSED: -- told me was that when shipping firearms, once they're packaged up for shipment, it's considered shipping at that point, not transport. And I'm sure that while you're doing your research, you'll come across that. So once they're packed up to be shipped --
THE CLERK: She says we could just do and she can submit it [indiscernible/voice low}. THE ACCUSED -- the RCMP doesn't consider that transporting them anymore, it considers them shipping them, because I asked them if I want to mail it or FedEx it to somewhere, how do I get from my home to the post office or in the UPS place? And he said, "Well, don't worry, as long as it's packaged up and sealed and everything, then we don't care at that point."
MR. MYHRE: So, My Lady, what I take Mr. Fox to be saying is he believes that he was allowed to ship and that ship is different than transport, and it seems to me that he's saying that he did have authorization or his possession of them would have been in a place where it may be possessed under the Firearms Act, which is the subsection (c) of s. 93. So it seems to me that, in that case, with the Crown saying that he wasn't authorized to do it under (b), I guess I'm not sure whose onus it would be, but it would have to be legislation from the Firearms Act relevant to that. Anyway --
THE COURT: Well, that surely wouldn't help Mr. Fox if the Crown's relying on (b) and saying Mr. Fox was subject to specific conditions about where he could possess firearms and he breached the condition, that that's the Crown's theory, and that engages paragraph (b). So it doesn't really help Mr. Fox if something else would have allowed him to possess the firearms somewhere else because the Crown's essentially alleging a breach of a specific condition.
THE ACCUSED: I'm sorry, I didn't bring a copy of my Criminal Code today. May I borrow yours for one moment, just so I can see what you're -- (b) and (c). Yes, 92, 93. Okay.
THE COURT: So, Mr. Fox, as I understand it, the Crown is essentially saying these are restricted firearms, you wouldn't be entitled to possess them at all unless you had a -- an authorization to possession them. You do have an authorization, but the authorization only goes so far, and in particular it doesn't allow you to transport them except to and from ranges and to boarder points of entry, and according to the Crown, when you put them into the possession of Mr. Mangat and UPS, you were not transporting them, you were allowing someone else to do that on your behalf, so you were in possession of them, but not complying with your authorization, which required you to personally transport them. That's the Crown's position as I understand it. Have I got that correctly?
THE ACCUSED: Yes. I agree that is the Crown's position. My position, though, based on what the RCMP had told me, which, unfortunately, I can't prove at this moment, but what they had told me long before I did any of this was that once I packaged the firearms up for shipment, they're considered not to be in transport at that point, but that's part of the shipping process. And there is some information along that lines on the RCMP's website, but it is somewhat of a fuzzy area. I've not been able to find any clear regulation or legislation on that issue.
THE COURT: All right. How do you want to deal with this, Mr. Myhre?
MR. MYHRE: My Lady, I would like the opportunity to go away and come back with --
THE COURT: All right.
MR. MYHRE: -- thought-out submissions.
THE COURT: Then what we'll do is right now we'll take the afternoon break. I'm going to ask Madam Registrar to see if we can set up a video conference for tomorrow. I've suggested eleven o'clock just to keep out of the busiest times when the videos are used the most. Mr. Sheriff, am I right in thinking that's sort of between 9:00 and 10:00?
THE SHERIFF: Yes, My Lady.
THE COURT: So 11 would be likely less busy?
THE SHERIFF: Some days are busier than others. It all depends on what's on the list for videos.
THE COURT: What might be the best time of day, then?
THE SHERIFF: I --
THE CLERK: I know two o'clock is fixed date -- or, no, is tomorrow Tuesday?
THE SHERIFF: No, tomorrow's Tuesday, yes.
THE CLERK: Yeah.
THE SHERIFF: Two o'clock.
THE COURT: Two o'clock would be better, you think?
THE SHERIFF: Probably, yes.
THE COURT: That would give us enough time? All right. So I'll ask Madam Registrar if she's able to set up a video for two o'clock tomorrow. We'll come back, we'll find out whether we've got that, and I do have some other questions on Count 1, Mr. Myhre. All right. Thank you.
THE CLERK: Order in court. This court stands adjourned for the afternoon recess.
(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)
(PROCEEDINGS RECONVENED)
(JURY OUT)
THE COURT: Madam Registrar, were you able to secure a video hearing for tomorrow?
THE CLERK: I let her know about it, but I can't call for video remand until the end of the day.
THE COURT: Oh, I see.
THE CLERK: But she's aware of it.
THE ACCUSED: I can -- throughout the day tomorrow, I'll just remain ready at any moment.
THE COURT: Thank you, Mr. Fox.
All right. Other questions. Count 1, there's a range of dates, inclusive, and two places alleged, Burnaby and Surrey, and my question is, Mr. Myhre, what's the basis for alleging Burnaby and Surrey?
MR. MYHRE: Sorry, My Lady, I must have -- I'm not sure how Surrey got in there. There's no allegation that Mr. Fox was ever in Surrey. The evidence is that he was living in Burnaby and -- while the site was being hosted at his home in Burnaby.
THE COURT: Should the indictment be amended perhaps just to make that -- remove an extraneous consideration for the jury?
MR. MYHRE: I'd be happy to, My Lady.
THE COURT: Mr. Fox, would you have any objection to that?
THE ACCUSED: I don't.
THE CLERK: Sorry, My Lady, what were we amending?
THE COURT: Count 1, remove "and Surrey." All right. So that's done. And I will simply mention it to the jury in passing in the course of my final instructions when I'm giving them the wording of the indictment.
Sometimes in relation to criminal harassment charges a portion of the charge deals with "without lawful authority," which is part of the wording of the charge. I am not proposing to include that here. It seems to me, and you may have a different submission, either Mr. Fox or Mr. Myhre, but it seems to me the only conceivable lawful authority would be freedom of speech, putting that very generally, and that appears to be a freedom which is superseded by the Criminal Code provision that restricts the right to communicate if the communication amounts to what the Criminal Code defines as criminal harassment.
So it seems to me not to be helpful to the jury to go into lawful authority. If the jury finds that what took place meets the definition of criminal harassment, then it would appear to me to follow that there's no freedom to engage in it. If, on the other hand, the jury finds that the communications did not amount to criminal harassment, then there's also no need to go into lawful authority. But am I missing something in that analysis?
THE ACCUSED: I think that the issue is slightly complicated by there is direct communication which is the emails, and then the Crown is also alleging that the website is itself somehow some form of harassment, I believe, or they did allege that at some point. My position has been that the content of the website is purely a matter of free speech because Ms. Capuano is under no obligation to go to the website and subject herself to it, so if we're only talking about the emails, then that's certainly not something that would be protected by free speech because that's direct communication. However, I'm still of the opinion that the content of the website, which was not sent to, either directly or indirectly, Ms. Capuano, should be protected by free speech -- or, I'm sorry, should be protected as free speech.
THE COURT: I'm not sure that that's an argument that's available to you to bring at this stage. What's your view on that, Mr. Myhre?
MR. MYHRE: I agree with your original comments, My Lady, and it seems to me that the "without lawful authority" portion there was meant to exempt people who are specifically required by law to do certain things. So, for example, a police officer trying to serve somebody with a subpoena can't be charged with criminal harassment for besetting and watching a dwelling house. You may have seen in the Kelly case that I handed up with my book of authorities that there is some discussion of lawful authority and they give very short shrift to -- to that idea that maybe freedom of speech protects what that person said on the website.
Now, I appreciate what Mr. Fox is saying about communication, but, in my submission, that is something that has to be addressed under the definition of direct or indirect communication.
THE COURT: Nothing further, Mr. Fox, on that?
THE ACCUSED: No, My Lady.
THE COURT: So it's my view that the "without lawful authority" language doesn't apply in the circumstances of our case. It may be, Mr. Fox, that there are arguments to be made on different issues about the fact that the website, while public, was not specifically directed at Ms. Capuano and she was free not to look at it. Perhaps that might go to whether she was harassed, whether she was actually afraid for her safety, whether she even knew about what was on the website, whether it was reasonable for her to fear for her safety because it was open to her to stay away entirely from it. I -- I'm not saying that's a conclusion or even that it necessarily does go to that issue, but that may be the type of argument you're thinking about.
THE ACCUSED: Yes, My Lady.
THE COURT: But I don't think you can work with the concept of "without lawful authority" in a freedom of speech kind of way to legitimize conduct that the jury may find, if it does find, fits the definition of criminal harassment, and, of course, it's always -- I'm not saying the jury will make that finding, but it's obviously one of the available findings that's open to them. Thank you.
That takes us nicely to my next question, which is what's the indirect communication that the Crown is alleging, particularly since the dates of Count 1 are in the first part of 2015, January 11 to May 27 -- oh, no, to 2016, so that's a long period of time. What -- what is the indirect communication so that I can properly describe that that's being alleged? The direct communication is presumably the emails?
MR. MYHRE: Yes, and it would be the Crown position that the website itself also amounts to direct communication because Mr. Fox is repeatedly reminding Ms. Capuano about it. So if he says, "Look, I'm posting this up there, I'm going to update your website," he's essentially telling her to go and look at this thing, so in that way it could be considered direct communication.
It could also be considered indirect communication in this way: Mr. Fox states in a number of different places that his intention is that this website will have repercussions in the community for Ms. Capuano, so he is intending that other people will see this website and that will affect their interactions with Ms. Capuano, whether it's by denying her a job, laughing at her behind her back, denying her fiancé a job. Those are the ones that come to mind immediately.
THE COURT: But is that an indirect communication with her if they don't -- those other people don't bring it to her attention?
MR. MYHRE: In my submission, it --
THE COURT: I would have thought the communication there is the direct one telling her "I'm doing all these troubling things on the website that are going to affect you," but the only indirect communication is one that comes to her attention somehow.
MR. MYHRE: So it does come to her attention on at least a couple of times that spring to mind; first of all, in that -- for example, when she applies to Pima Community College and then they tell her "We're not offering you a job," that's coming back and having an impact on Ms. Capuano, and it's being communicated back to her in exactly the way that Mr. Fox intended for it to be.
THE COURT: But that's an effect on her -- I see what you're saying. If the Pima people said, "We've seen things on this website that trouble us," that's an indirect communication to her. I'm not sure it is, as I say that. It's certainly an indirect effect on her, but what is it that's being communicated? Because what comes back to her is "We're troubled by what we see on the website and we don't want to hire you," not "Your ex says you are this, that and the other."
MR. MYHRE: So with respect to indirect communication, in my submission, it doesn't actually -- when we're talking about that element of the offence it doesn't matter, actually, if they do come back and complete the circle by saying something to Ms. Capuano. What's clear is that Mr. Fox's intention is that his website will spread her reputation in the community, people will not respect her, and so he is indirectly trying to influence anybody who would come into contact with Ms. Capuano. That's his stated intention with the website. So with respect to that element of the offence, what he is trying to do is accomplish indirect communication.
THE COURT: With whom?
MR. MYHRE: Anybody who would come into contact with Ms. Capuano, whether it's a potential employer, whether it's someone in her community.
THE COURT: But here's -- here's my problem: The communication is with those other people, it's not with Ms. Capuano when you describe the facts in that way.
MR. MYHRE: Yes, I agree.
THE COURT: And I'm not sure that falls within the Criminal Code definition. Well, perhaps it does.
MR. MYHRE: It does include indirect communication, My Lady.
THE COURT: Well, I think, more significantly, it includes repeated communication, either directly or indirectly, with the person, Ms. Capuano, or anyone known to them. I think that's what you're really relying on.
MR. MYHRE: That works as well, and, yes, that -- I just forgot about that wording.
THE COURT: All right. Mr. Fox?
THE ACCUSED: With all due respect to Mr. Myhre, I must respectfully disagree. On the point of the website being direct communication because I keep telling Ms. Capuano about it, my position on that would be me telling Ms. Capuano about it would be direct communication, but by telling her about it I'm not causing it to be direct communication itself. Perhaps at most it might possibly be indirect communication.
And then on the point of -- on the point of it being indirect communication because it causes others to behave differently toward her, I would agree with your opinion that that's not communication, that's an indirect effect, but I believe that the -- what Parliament had in mind when they said indirect communication was, for example, me going to somebody and saying to them, "Would you please contact Desiree for me or would you pass this message along to her?" I mean, if -- if we're to take the Crown's position and say that it's indirect communication if I publish something about Desiree, then that means that, for example, that Natalie Clancy is causing thousands of people across Canada to have indirect communication with me after she did the story about us on CBC, and I think that that would be an incredible stretch.
Now, it should be mentioned that one of my goals with the website is actually to have the exact opposite effect of indirect communication by informing the people that might potentially come in contact with Ms. Capuano of my past experiences with her and my opinion and what I believe about her. I'm hoping that people will not want to have anything to do with her. So really my goal is not to generate any indirect communication, it is to alienate her from all of the people around her, which would seem to be the exact opposite.
And finally I want to say on the idea that the website is indirect communication because I write something and then that causes people -- or motivates people to contact Ms. Capuano to ask her about it or tell her about it, etc., I have no control whatsoever over what a third party does when they read the website. If I was to contact these people and say, "Hey, can you tell Ms. Capuano about this" or do something to motivate them to contact her about it, that would be different, but in this case certainly I -- I can't control what all these third parties might do when they read the stuff on the website.
THE COURT: All right.
THE ACCUSED: And so, based on that, I find it very difficult to say that the website could possibly be indirect communication based on those arguments, and certainly not direct communication. I mean, Ms. Capuano was always free to simply not go to the website. Thank you.
THE COURT: Thank you. Next question. I should have asked this earlier, Mr. Myhre, but I take it -- if you look at s. 264 and the types of conduct that the Crown is relying on, I take it you're relying on (b) and (d)?
MR. MYHRE: Yes, My Lady.
THE COURT: And I am now going to ask you about (d), which is engaging in threatening conduct directed at the other person, which would be Ms. Capuano, or any member of their family. What is -- I know part of the answer to this, but I'd like to hear it from you. What is the particular conduct that the Crown relies on in relation to (d)?
MR. MYHRE: So the list that I have so far, My Lady, include the many statements Mr. Fox made in email to Ms. Capuano about his intention to make her life miserable. Those are threats directly to her psychological safety.
THE COURT: All right.
MR. MYHRE: There were other threats, threats to have someone -- hire someone to sleep with her, to take photos, threats of a billboard campaign, threats to ruin her reputation through a website. And then the threat to her physical well-being is in the January 11th, 2015 email. You'll remember words to the effect of that Mr. Fox told {G*****} he would shoot Desiree if not for the risk of going to jail, with the attendant caveats that Mr. Fox attached to that, and so it would be open to the jury to find that that was a threat to her physical well-being.
THE COURT: Thank you. And what about potential effects on -- I'm using the Criminal Code language for (b), which is repeated communication -- no, I'll just confine it to (d), threatening conduct directed at any member of their family. Is there an allegation that any member of the family was threatened?
MR. MYHRE: Yes, there is a -- a thinly-veiled threat on the Crown's theory to James Pendleton to interfere with his security clearance.
THE COURT: And for that to be threatening conduct that engages the section it would have to be threatening conduct that caused Ms. Capuano reasonably in all the circumstances to fear for her safety or the safety of anyone known to her. How would the thinly-veiled threat to Mr. Pendleton engage that consequence?
MR. MYHRE: Well, a threat, in my submission, to interfere with somebody's career is a threat to cause them psychological harm, with the obvious attendant distress to losing one's career. There was -- and there were similar threats made to Ms. Capuano in terms of trying to interfere with her career. That was his stated goal.
THE COURT: And is there any other family member that is said to be engaged and affected by potential threatening conduct? I know -- and I'm asking this because Ms. Capuano herself did mention consequences for the children that she was concerned about. Do those come into the Crown's theory of the case in any way that I need to be addressing?
MR. MYHRE: I just have to think about that for one second.
There is -- yes, there is -- I'm sorry, My Lady, I just haven't quite phrased in terms of threatening conduct versus direct or indirect communication. I had structured my submissions more in a holistic manner, individual actions or ways that Mr. Fox tried to harass Ms. Capuano. But one of the ways is by interfering with her relationship with {G*****}, and you may recall statements Mr. Fox made to the effect of that he was using {G*****} as a pawn in his plan, tying that into hurting her emotionally, what could be more effective than for your child to utterly despise you? And so in those statements that he makes to Ms. Capuano related to {G*****}, he clearly is also threatening her psychological well-being. He's threatening to scar her emotionally by manipulating the situation so that {G*****} would end up hating his mother.
THE COURT: But that's still a consequence to Ms. Capuano and I'm wondering whether I need to be charging the jury about the fact that s. 264 encompasses conduct that causes Ms. Capuano to reasonably fear for the safety of others, and I'm wondering if the others -- the Crown's alleging that she had reasonable fears for the safety of the children.
MR. MYHRE: She did, and you will remember her evidence about being concerned about {SC*****}'s well-being due to the pictures that were posted, you'll remember the email where she tells Mr. Fox that she believes that his actions are hurting {G*****}.
THE COURT: All right. Thank you.
I think I've asked all the questions I wanted to ask. Yes. Is there anything you'd like to raise, Mr. Fox?
THE ACCUSED: I would just like to make one quick response to some of what Mr. Myhre had just said. It seems to me that what Mr. Myhre is classifying as threats, I have difficulty accepting that telling someone that you intend to publish the truth about them, and that, as a consequence of that truth becoming known, they're going to have adverse consequences, I don't see how that can be considered a threat. Again, it's something that the news media does every single day. So when I tell Ms. Capuano that I intend to notify the Department of Defence that Mr. Pendleton is cohabiting with her, that's not really a threat, that's simply telling the truth.
Also, I think it's a bit of a stretch on the issue of the statement that -- about me shooting her if it was legal, etc., and we've all seen that email and -- well, so that's all.
THE COURT: All right. Thank you.
Mr. Myhre, anything else you wish to raise? Anything -- appreciate you haven't got a draft of the charge, but is there anything that you -- anything specific that you would like to see included that you think I might not otherwise think of?
MR. MYHRE: I think it does arise on the evidence, it seems to me that when I look through Mr. Fox's website posts and his emails, that he actually is mistaken about what the law is on three points: First of all, whether that website could constitute communication, direct or indirect; second, that truth is a defence to a charge of criminal harassment; and, third, that harassment only encompasses fear for physical safety.
And I think, My Lady, your instructions on whatever the law is, I mean, you will determine what the law is and give instructions on whether the website can constitute communication as it's defined in s. 264 and whether harassment encompasses psychological harm. The issue of whether truth is a defence may need addressing. It seems to me -- and maybe that's a matter to be addressed depending on Mr. Fox's closing submissions, but if it does come up in his closing submissions, it doesn't seem to me that whether certain statements are true or not has any bearing on the crime of criminal harassment.
THE COURT: All right. Thank you, Mr. Myhre.
I would rather that these points be made clear before Mr. Fox makes his closing address so that he doesn't find himself in a position of having made a closing address and then have me tell the jury that what he argued is not capable of being a defence.
On those points, one by one, Mr. Fox, as I see it, and if we need to have some argument on this -- don't -- don't worry, have -- sit down -- if we need for this to be argued further, we can make arrangements, but as I see it, the website can amount to communication with Ms. Capuano, whether it's direct or indirect, if it comes to her attention, but, in addition, s. 264 encompasses repeated communication with people known to Ms. Capuano, so if there is repeated communication with, for example, employers or friends or Mr. Pendleton, that too can amount to communication that falls within s. 264, and the website would be in some circumstances capable of being that form of communication. Now, it may be open to you to argue, Mr. Fox, that there's no evidence or no sufficient evidence that other people known to Ms. Capuano actually read the website, and so in that sense there wasn't any communication, but that's a matter for argument.
I'm going to go to the third point. It's clear from the law that criminal harassment under s. 264 does encompass more than physical safety. It includes psychological and emotional security, and the term well-being, emotional well-being is often used in the case authorities. I'll instruct the jury that to engage s. 264 the conduct would have to have an effect that's -- on psychological or emotional security that's -- I won't use this word, but a meaningful effect. It can't be a trifling effect. But it doesn't have to lead to mental illness, for example.
And then the second point Mr. Myhre raised, Mr. Myhre is concerned that Mr. Fox sees truth as being a defence to s. 264. Put in stark terms like that, the proposition is not correct. Truth is not a defence. This is not a defamation trial. The matter may be a bit more nuanced, it may be open to argue that if something is true, it's less likely to be disturbing to people, but clearly the law contemplates that in some situations repeated communication about something that may even be true can amount to harassment if it causes the person reasonably to fear for their safety or if it amounts to threatening conduct that causes the person reasonably to fear for their safety or someone else's safety.
Now, does any of that surprise you, Mr. Fox, or trouble you?
THE ACCUSED: It doesn't -- it doesn't surprise me so much. I'm -- I have again another bit of a disagreement, I guess, with Mr. Myhre because I think he's incorrect on some of the points about my beliefs. I don't believe that the truth is any kind of defence for harassment; however, I -- well, for example, if I'm emailing Ms. Capuano, telling her something that's the truth, then that would be direct communication, and so the fact that it's the truth would be irrelevant.
My concern about the truth is when I'm speaking the truth publicly to other people that has -- that have nothing at all to do with her; for example, in a public forum like on the website, that is where I think that the question of it being the truth becomes relevant because in the Kelly case, for example, that the Crown has provided, in that case, the defendant was committing defamation on -- in a public forum on a website, so in that case, the government -- or the -- the court, sorry, found that that did contribute to the harassment.
On the issue of the psychological safety, I accept that here in Canada there is the concept of psychological harm and psychological safety. I'm admittedly a little bit concerned, though, that in the jurisdiction that Ms. Capuano lives in in Arizona they have no such concept, which creates the situation where Ms. Capuano can then continue to do the things to me that she has been doing because it's perfectly legal where she happens to live; however, I'm residing in a jurisdiction where that might potentially not be legal. So she can say what she wants about me on the Internet and I have no way to respond, no way to defend against her -- her claims. Or I shouldn't say in her case not on the Internet, she went to news media about it. So had I not responded, then everybody would just assume that I concede to those points; if I do respond, then I'm accused of harassment. But that's potentially another issue that would have to be taken up separately.
And on the issue of the website possibly constituting communication, there are some cases that equate something like a website or a blog to being equivalent to either a public forum or somebody standing on a street corner with a megaphone shouting out to the general public, and, for example, in R. v. Kelly, the court analogized it as if somebody were to do that in a location where they know that the person has to go past in order to get to work, then that could be considered, I think it was indirect communication because the communication was not intended for the person, but if they were to do that in a place where the person reasonably would not be going to or would have no reason to go to, then that would be just communication with the general public.
So maybe I'm not a hundred percent clear on how we would come to the idea that the website could be considered communication if it comes to her attention. I mean, it can come to her attention by her explicitly going to the website. I can't stop her from going to the website. Well, I guess I could block her IP address, but -- so if that's the case, then if I speak publicly to everybody in the world except her, but then she goes explicitly to the website, then that's causing me to commit harassments unintentionally.
THE COURT: Thank you. Anything further, Mr. Myhre?
MR. MYHRE: No, My Lady.
THE COURT: All right. I will revise my draft of the charge with a view to giving you each a draft after the closings are finished on Wednesday, and then we can go over it and any further submissions can be made. I might give it to you first thing Wednesday so that you've got it to look at in the breaks and so forth. We will hope to resume tomorrow to address the issue of Count 2 and how that -- and the interpretive issue relating to the prohibition on transporting, and the tentative plan, then, is for that to be at two o'clock with Mr. Fox by video, and if for some reason that's not going to work out, I'm sure scheduling will be in touch and we'll try to convene by -- in that way earlier in the day.
Anything else before we stand down for the day?
THE ACCUSED: No.
MR. MYHRE: No, My Lady.
THE COURT: Thank you.
(PROCEEDINGS ADJOURNED TO JUNE 20, 2017, AT 2:00 P.M.)
Transcriber: S. Lotz